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2tAS.  Spring  «t.,    L.  A. 


LAW   LIBRARY 

OF 

LOS  ANGELES  COUNTY 


U  An  ©ft-  ^"  *• 


A  SELECTION  OF  CASES 


LAW    OF 

EXTRAORDINARY  LEGAL 
REMEDIES 


INCLUDING 


MANDAMUS,    QUO    WARRANTO,     PROHIBITION, 

CERTIORARI,  PROCEDENDO  AND 

HABEAS    CORPUS 

WITH  COLLATERAL  NOTES  AND  CITATIONS 


BY 

V.  H.  ROBERTS,  J.  U.  D. 

Professor  of  Law  in  the  University  of  Missouri 


INDIANAPOLIS 
THE  BOBBS-MERRILL  COMPANY 

1905 


Copyright  1905 

BY 

V.  H.  ROBERTS 


T 

19^5* 


TO  THE  MEMORY  OF  MY  MOTHER. 


PREFACE 


That  the  subject  of  Extraordinary  Legal  Remedies  is  one  of 
great  practical  importance  will  not,  I  think,  be  denied.  When, 
however,  the  instructor  has  attempted  to  arrange  a  course  of  study 
in  this  subject,  he  has  invariably  been  confronted  with  the  serious 
difficulty  of  being  unable  to  place  in  the  hands  of  the  student  either 
a  text-book  suitable  for  class-room  work  or  an  adequate  collection  of 
cases  covering  the  subject.  Where  the  instructor  desired  to  use 
the  case-method  in  teaching  the  subject,  no  other  course  was  open 
than  to  send  the  class  to  the  library,  and  the  results  of  this  method 
of  obtaining  the  necessary  material  were  anything  but  satisfactory 
to  either  instructor  or  student.  This  volume  of  cases  is  the  result 
of  a  number  of  years'  experience  with  the  problem  I  have  indicated. 

In  making  the  selection  of  cases  herein,  I  have  in  no  measure 
been  guided  or  influenced  in  my  choice  by  the  adjudications  of  any 
particular  state  or  jurisdiction.  I  have  had  before  me  only  the  single 
purpose  of  arranging  and  classifying  the  subject  and  selecting  the 
cases  in  order  to  afford  material  froin  whose  study  and  investiga- 
tion the  student  may  be  able  to  gain  an  accurate  and  working  knowl- 
edge of  the  principles  underlying  and  governing  the  law  of  Extra- 
ordinary Legal  Remedies. 

In  the  notes,  which  will  be  found  copiously  scattered  throughout 
the  volume,  I  have  attempted  to  indicate  the  state  of  the  law  in  other 
jurisdictions  on  the  point  involved,  and  in  many  instances  have 
utilized  the  notes  for  a  brief  statement  of  collateral  principles 
which  the  necessity  of  keeping  within  the  space  of  a  single  volume 
forbade  bringing  into  the  text.  The  cases  cited  in  the  notes  have 
been  carefuly  verified,  and,  I  trust,  wall  all  be  found  in  point. 

In  almost  every  case,  portions  of  the  opinion,  either  cumulative 
or  not  touching  the  point  involved,  have  been  omitted  and  in  many 

(y) 


VI  PREFACE. 

cases  the  statement  of  facts  has  been  much  abridged  and  sometimes 
wholly  rewritten.  I  have  not  endeavored  to  indicate  this  fact  in 
every  case  by  the  conventional  footnote,  but  leave  the  above  state- 
ment to  serve  as  a  general  explanation  applicable  to  all  cases.  For 
obvious  reasons,  I  have  devoted  comparatively  little  space  to  the 
matter  of  Pleading  and  Practice  in  its  relation  to  the  subject  of  the 
work. 

In  the  following  pages  I  have  not  attempted  to  make  any  con- 
tribution to  legal  literature;  I  have  only  sought  to  present  a  subject, 
which  I  deem  very  important  and  of  practical  value,  in  a  form  which 
will  enable  it,  I  hope,  to  be  readily  taught  and  handled  with  some 
degree  of  satisfaction  in  the  class-room.  While  this  volume  is  in 
no  sense  arranged  with  the  needs  of  the  practitioner  in  view,  I 
venture  to  hope  that  the  student  may,  after  adding  his  notes  and 
the  results  of  his  own  research,  find  the  volume  of  some  real  use 
in  the  future  practice  of  his  profession. 

In  conclusion,  I  submit  this  work  to  the  kindly  judgment  of  those 
who  may  have  occasion  to  use  it,  in  the  sincere  hope  that  it  may 
prove  of  service,  if  in  nothing  more  th^n  to  lighten  the  labor  of 
both  instructor  and  student. 

V.  H.  ROBERTS. 

Columbia,  Mo., 

September  15,  1905. 


CONTENTS. 


Chapter 

I. 

Chapter 

IL 

Chapter 

III. 

Chapter 

IV. 

Chapter 

V. 

Chapter 

VL 

page. 

MANDAMUS   i— 24S 

QUO    WARRANTO    249—449 

PROHIBITION    450—536 

CERTIORARI    5Z7—^7Z 

PROCEDENDO    674—680 

HABEAS   CORPUS    681—878 


SYNOPTICAL  TABLE  OF  CONTENTS. 


CHAPTER  I. 

MANDAMUS. 

Section  i. — Definition  and  general  principles i 

1.  Definition     i 

2.  Prerogative   writ   or   writ   of    right 2 

3.  Regarded  generally  as  an  ordinary  action  at  law 4 

4.  Petitioner  must  show  a  clear  legal   right 6 

5.  Discretion   in  granting  or   refusing  the   writ 9 

6.  Not  granted  if  there  is  another  adequate  remedy 11 

7.  Not    granted    to    compel    the    performance    of    impossible    acts    or 

when    useless    or   unavailing 27 

8.  Does  not  lie  to  enforce  purely  contractual  obligations ^^ 

9.  Petitioner  must  show  himself  without  fault 36 

10.  Necessity  of  demand  and  refusal,  respecting  duty  to  be  performed.  40 

11.  Will  not  be  granted  to  control  acts  purely  discretionary 45 

12.  Not   granted   in   mere   anticipation   of   an   omission   of   dut\- 57 

13.  Statutes   of   limitations,   how   affecting   actions   in   mandamus....  64 
Section   2. — Mandamus   to   Inferior  courts  and  judicial   officers 6q 

1.  May  compel  court  or  officer  to  act  but  cannot  control  decision. ...  69 

2.  Mandamus   in   civil    actions   generally 7^ 

3.  To  compel  re-instatement  or  dismissal  of  cause 75 

4.  To  compel  the  granting  of  a  change  of  venue 78 

5.  Vacating  judgment  or  order  and  enforcing  same Si 

vii 


vni  CONTENTS. 

PAGE. 

6.  Compelling  the  allowance  of  an  appeal 84 

7.  Compelling   court    to    sign    bill    of   exceptions    or   to    amend    same 

according  to  the  truth   in   the  case. .' 88 

8.  To  set  courts  in   motion  but  not  to  interfere  with   their   exercise 

of   judicial    discretion 93 

9.  To  compel  performance  of  purely  ministerial  duties 95 

ID.     Removal  of  causes  from  State  to  Federal  courts 98 

II.     To  compel  the  approval  of  lionds 104 

Section   3. — Mandamus   to   public   oMccrs 109 

1 .  In  general    109 

2.  Mandamus  to  the  President  of  the  United  States 121 

3.  To  other  executive  offices  of  the  Federal  government 122 

4.  To  the  Governor  of  a  State 127 

5.  To  legislative  officers   152 

6.  Trying  title  to  office  by  means  of  the  writ.  . 154 

7.  Correcting  a  motion  from  public  office ' 158 

8.  To  obtain  possession  of  books  and  paraphernalia  of  office 162 

9.  To  compel   acceptance  of  office  and  discharge  of  public   duties..  165 
Section  4. — Mandamus  to  municipal  corporations  and  municipal  officers ..  .17 ^ 

1.  In  general 173 

2.  To  compel  the  auditing  and  paying  of  claims '. I75 

3.  To  compel  municipal  taxation  to  pay  subscriptions  and  bonds 179 

4.  To  compel  the  making  of  public  improvements 187 

Section  5. — Mandamus  to  Private  Corporations  and  the  Officers  thereof ..  .iSg 

1.  To   compel    the   performance   of   duties   due   to   the   public   and    to 

third   parties    189 

2.  To  correct  a  motion  from  the  corporation 203 

3.  To  enforce  tlie  right  to  inspect  the  books  and  records 209 

4.  To  compel  the  transfer  of  shares  of  stock 215 

Section  6. — The  Parties    -218 

1.  The    plaintiff    219 

2.  The  defendant  222 

Section  7. — Pleadiuf^  and  Practice   in  Mandamus 226 

1.  Statute  of  Anne    ^26 

2.  The    petition     227 

3.  The  alternative  writ 228 

4.  The  return    -28 

5.  01)jcctions  to  the  suflicicncy  of  tlic  alternative  writ 229 

CII.VPTI'k   IT. 

nun    W.M<RAKTO. 

Section   I. — IhTiuilinn  and  yj-nrrol  principles  ii(n'ernin!^  the  7vrit 249 

1.  ncfinilif)n,  origin  and  history  of  the  writ 249 

2.  The  ancient  "writ"  and   modern   "information" 254 

3.  Writ  criminal   in    form  Iml   ciN-il   in   nntnic 261 


CONTExNTS.  IX 

PAGE. 

4.  The  jurisdiction  to  issue  the  writ 2O4 

5.  Not  granted  to  redress  purely  private  wrongs 264 

6.  Existence  and  adequacy  of  other  remedies  as  a  defence 271 

7.  Not  employed  to  test  the  legality  of  acts 280 

8.  Effect  of  statutes  of  limitations  on  actions  in  quo  ivarranto 284 

9.  Discretion  in  refusing  or  granting  the  writ 288 

10.  English  statutory  provisions  as  part  of  the  American  common-law. 300 

a — Statute  of  Gloucester    301 

b — Statute  de  quo  warranto  Novum   303 

c — Statute  of  Anne 303 

Section  2. — Against  Municipal  Corporations  and  Public  Oihccrs 305 

1.  Original  and  early  uses  of  the  writ  as  against  municipalities 305 

2.  Acquiesence  or  continued   recognition  as  a  bar 310 

3.  Will  not  lie  to  remedy  neglect  to  perform  a  corporate  duty  or  to 

annul  a  municipal  ordinance   315 

4.  When  used  to  test  the  right  of  an  incumbent  to  a  municipal  office, 

inquiry  may  be  directed  to  the  legality  of  the  existence  of  the 
municipality 319 

5.  To  test  the  legality  of  the  exercise  of  municipal  powers  outside 

of  corporate  boundaries    322 

6.  Appropriate  remedy  to  try  title  to  public  office   326 

7.  Induction  of  relator  into  office  as  part  of  the  relief 346 

Section  2>-— Against  Private  Corporations  and  the  Officers  thereof 346 

1.  To  correct  usurpation  of  franchise  346 

2.  To  test  the  constitutionality  of  the  act  of  incorporation ••360 

3.  To  correct  perversion  and  non-user  of  corporate  nowers  and  pun- 

ish for  failure  to  comply  with  charter  conditions 361 

4.  To  oust  foreign  corporation  from  doing  business  in  the  State 373 

5.  Discretion  in  granting  or  refusing  the  writ 374 

6.  To  correct  usurpations  of  corporate  office   377 

o.— American  rule 377 

b — English  rule 383 

7.  An  actual  user  of  the  office  must  be  sworn 388 

8.  Will  not  issue  against  mere  servants 390 

9.  Relator's  interest  where  dissolution  of  the  corporation  is  sought.. 391 
Section  4. — The  Parties    395 

1.  State   or   People   as   plaintiff 395 

2.  Private  citizen  as  relator  402 

3.  Respondents — Public   corporations    414 

4.  Respondents — Private  corporations    419 

5.  Respondent   as   usurper   of   corporate   office 429 

Section   5. — Pleading,  Practice  and  Procedure 433 

1.  The  pleadings  in  general   433 

2.  The  information,  petition  or  complaint  438 

3.  The    plea    or    answer 438 

4.  Replication    and   subsequent   pleadings    440 


X  CONTENTS. 

CHAPTER  III. 

PROHIBITION. 

PAGE. 

5.  Burden  of  proof    440 

6.  Statute  of  limitations  no  bar  to  the  action 444 

7.  General  matters  of  practice   445 

Section    i. — Definition  and  general  principles 450 

1.  Definition   450 

2.  Common    law    writ 459 

3.  Not  a  writ  of  right 462 

4.  Existence  of  other  remedies  as  a  bar 469 

5.  A  preventive,  not  a  corrective   remedy 477 

6.  Reaches  only  judicial  acts  and  directed  only  to  judicial  tribunals.  .482 

7.  To  correct  judicial  acts  in  excess  or  defect  of  jurisdiction 490 

8.  To  correct  misconstruction  of  law  affecting  jurisdiction 498 

9.  Whether  granted  before  or  after  judgment  below 502 

Section  2. — Matters  of  Jurisdiction    503 

1.  Right   to   issue   writ   confined    solely   to   courts   of   superior   juris- 

diction     503 

2.  Questions   of   jurisdiction   to   be   determined   by  the   court   issuing 

the  writ 508 

3.  Not  directed  to  pureh^  ministerial  officers  or  to  control  ministerial 

acts   512 

Section  3. — The  Parties 514 

1.  Interest  required  to  be  shown  on  part  of  plaintiff 514 

2.  The  defendant  or  respondent    519 

Section  4. — Pleading,  Practice  and  Procedure   524 

1.  Common    law    practice 524 

2.  Modern  practice 527 

3.  The  petition    528 

4.  Rule  to   show   cause    532 

5.  Answer  or  return    536 

6.  Demurrer    536 

CHAPTER  IV. 

CERTIORARI. 

Section   l. — Definition  and  general  principles  governing  the  ivrit 537 

1.  Definition  and  true  function  of  tlie  writ 537 

2.  Issued    only   as    against    officers    and    tribunals   exercising   judicial 

powers    550 

3.  Existence  of  other  remedies  as  a  defence 575 

4.  Adequacy  of  such   other  remedies    579 

5.  Not  a  writ  of  right  585 

6.  Effect  ot   relator's  acquicscnce,   laches   or   delay 592 

7.  When  used  as  an   auxiliary  remedy    602 


CONTENTS.  XI 

PAGE. 
Section  2. — Jurisdiction  to  issue  the  writ  606 

1.  Courts  possessing  supervisory  powers  and  general  jurisdiction 606 

2.  Federal  Courts    615 

3.  State   Courts   621 

a. — Superior  courts  of  appellate  jurisdiction 621 

b. — Inferior  courts  of  original  jurisdiction   625 

Section  3. — The  Parties    626 

1.  The  plaintiff  or  relator  626 

2.  The  defendant  or  respondent  640 

Section  4. — Pleading,  Practice  and  Procedure 653 

1.  The  pleadings  653 

a. — The  Petition   653 

b. — The  writ  654 

c. — The  Return   654 

2.  Procedure  in  obtaining  the  writ   654 

3.  General    Matters   of   practice 655 

a. — Issued  in  vacation  or  at  chambers 655 

b. — Whether  issued  before  or  after  final  judgment  below. 658 

c. — Verity  of  record  of  lower  court 663 

d. — Affirming  part  of  judgment 671 

c. — Costs  673 

CHAPTER  V. 

PROCEDENDO. 

Section    i . — In    general    674 

1.  The   common    law    writ 674 

2.  The   modern    use   of   the   writ 680 

CHAPTER  VI. 

HABEAS    CORPUS. 

Section  i. — Definition  and  general  principles  governing  the  zvrit 681 

1.  Definition,  origin  and  history  of  the  writ 681 

2.  Proper  function  of  the  writ   689 

3.  When  issued,  paramount  over  all  other  writs 698 

4.  What  constitutes  sufficient  detention  or  restraint 700 

5.  Detention  on  civil  process   712 

6.  Discretion  in  grantmg  the  writ  and  necessity  of  showing  probable 

cause    714 

7.  Habeas  Corpus,  a  civil  proceeding    725 

8.  Reviewing  questions  of  fact  on  Habeas  Corpus 727 

Section  2. — Courts  issuing  the  zirit   730 

1.  The  Federal  courts   750 

2.  State  courts  7^0 

Section  3. — Limitations  of  the  jurisdiction  and  scope  of  the  remedy  755 

I.     Proper  function  of  the  writ   755 


-XU  CONTENTS. 

PAGE. 

2.  Lack  of  excess  of  jurisdiction  in  committing  magistrate  or  court.. 755 

3.  Testing  the  constitutionality  of  a  law  760 

4.  Custody  of  children    764 

5.  Contempt  cases 778 

6.  To  secure  release  on  bail  or  speedy  trial 789 

7.  Habeas  Corpus  in  extradition  cases    802 

a. — International    802 

b. — Interstate    "rendition"    817 

Section  4. — The  Parties 838 

I.     The  petitioner    838 

Section  5. — Pleading,  Practice  and  Procedure  844 

1.  Petition  for  the  writ   844 

2.  Rule  to  show  cause    848 

3.  The  return ." 849 

4.  Evasive  returns  and  enforcing  obedience  to  the  writ  855 

5.  Duty  to  produce  body  of  the  person  detained   865 

6.  The  return,  to  whom  directed    870 

7.  Particular  matters  of  practice  and  statutory  regulation 871 

Section  6. — Suspension  of  the  writ  871 

1.  By  the  Federal  government  871 

2.  By    State    governments 878 


TABLE  OF  REPORTED  CASES. 


{References  are  to  Pages.) 

A 

American  Casualty  and  Security  Co.  v.  Tjder,  60  Conn.  448 109 

American  Waterworks  Co.  v.  State  ex  rel.,  31  Neb.  445 4 

Anonymous,    12   Mod.   423 519 

Attorney-General  v.  City  of  Boston,  123  Mass.  460 58 

v.  City  of  Salem,  103  Mass.  138 315 

V.  Perkins   et   al.,   7^    Mich.   303 '. 360 

Attorney-General  ex  rel.  v.  Barstow,  4  Wis.  567 333 

Auditor  v.  Halbert,  78  Ky.  577    64 

B 

Bailey  v.   Oviatt,  46  Vt.  627 33 

Baldwin  v.  Wheaton,  12  Wend.   ( N.  Y.)   263 673 

Bath  Ridge,  ett.,  Co.  v.  Magoun,  8  Me.  292 628 

Beck  V.  Dowell,  iii  Mo.  506 603 

Board  of  Supervisors  v.  Leigh,  69  Miss.  754 865 

V.  Magoon,    109   111.    142 592 

Bass  Crosb3''s  Case,  2  Wm.  Bl.  754 870 

Burch,  Mayor  v.  Hardwicke,  23  Gratt.   ( Va.)   51 503 

C 

Case  of  Cardiffe  Bridge,  i   Salkeld   146 606 

Case  of  The  Hottentot  Venus,  13  East  195 839 

Chinn  v.  Trustees,  etc..  32  Ohio  St.  236 66 

Christian  Prigritz  v.  Richard  Fischer,  4  Minn.  366 528 

City  of  Keokuk  v.  Merriam,  44  Iowa  432 162 

Clark  V.   People  ex   rel.,   15   111.  213 438 

Commercial  Bank,  etc.,  v.  Canal  Commissioners,  etc.,  10  Wend.   (N.  Y.) 

26  229 

Commonwealth  v.  Allen,  128  Mass.  308 444 

V.  Balph   et  al.,   iii    Pa.    St.   365 607,  621 

V.  City  of  Pittsburgh,  14  Pa.  St.  177 306 

V.  Commercial  Bank,  etc.,  28  Pa.  St.  383 361 

V.  Daniel  Chandler,  11  Mass.  83 866 

xiii 


XIV  TABLE  OF  REPORTED  CASES. 

{References  are  to  Pages.) 

Commonwealth   v.   Dearborn   et  al.,   15   Mass.    125 390 

V.  Henry,  49   Penn.   530 36 

V.  McCloskey  et  al.,  2  Rawle   (Pa.)    369 261 

V.  Ridgeway,  2  Ash.   (Pa.)   247 841 

V.  West  Boston  Bridge,  30  Mass.  195 671 

Commonwealth  ex  rel.  v.  Arrison  et  al.,  15  S.  &  R.  (Pa.)   127 ^yy 

V.  Cluley,    56    Pa.    .St.    271 402 

V.  Commissioners,   etc.,   37    Pa.    St.   277 232 

V.   Walter,  83   Pa.   St.   105 299 

Compton  V.   Airial,  9  La.   Ann.  496 83 

Connecticut,  etc.,  R.  Co.  v.  County  Commissioners,  127  Mass.  50 459 

Council  of  Glencoe  v.  Owen,  78  111.  382 115 

Crittenden   v.   Reilly,  97   Mich.   637 39 

Crook,  Judge,  v.   Newberg  et  al.,   124  Ala.  479 95 

D 

Darley  v.  The  Queen,  12  C.  &  F.  520 250 

Dexter  v.  Town  Council,  etc.,  17  R.  I.  222 630 

Doolittle  et  al.  v.  County  Court,  28  W.  Va.  158 244 

Drainage   Commissioners   v.    Griffin    et   al.,    134   111.   330 550,   606 

E 

Effingham  ex  rel.  v.  Hamilton,  68  Miss.  523 9 

Eighth  Street,  etc.,  v.  Council  of  Oakland,  40  Cal.  481 655 

Ex  parte  Alabama,   73    Ala.    503 817 

Ex  parte  Brown,   28   Fed.   653 829 

Ex  parte  Bryant,   2   Tyler    (Vt.)    269 869 

Ex  parte  Child,   15   C.   B.   237 840 

Ex  parte  Coupland,  26  Tex.  387 689,  755,  865 

Ex  parte  Crane  et  al.,  5  Pet.    (U.  S.)    190 89 

Ex  parte  Duncan,    54    Cal.    75 799 

Ex  parte  Durbin,    102   Mo.    no 852 

Ex  parte  Echols,  39  Ala  698 152 

Ex  parte  Hung  Hang,  108  U.  S.  552 730 

Ex  parte  Jasper   Page,  49  Mo.   291 757 

Ex  parte  Joseph    Neet,    157    Mo.    527 762 

Ex  partf  Kainp,  3  Blatchf.    (U.   S.)    i 802 

Ex  parte  Kaufman,   73   Mo.    588 727 

Ex  parte  Mcrryman,  9  Am.  Law  Reg.  524 871 

Ex  parte  Mirzan,    119    U.    S.   584 731 

Ex  parte  Morgan,   114  U.   S.   174 69 

Ex  parte  Myra  Clarke  Whitney,  13  Pet.   (U.  S.)   404 74 

Ex  parte  Randolph,  20  Fed.  Cas.   No.  242 712 

Ex  parte  Rny.-dl,    117   II.    .S.   241 732 


TABLE  OF  REPORTED  CASES.  XV 

{References  are  to  Pages.) 

Ex  parte  Snodgrass,  43  Tex.  Cr.  App.  359 706 

Ex  parte  Snyder,  29  Mo.  App.  256 696 

Ex  parte  Strahl,   16  Iowa  369 693 

Ex  parte  Tom  Tong,  108  U.  S.  556 725 

Ex  parte  Valandigham,   i   Wall.    (U.   S.)    243 615 

Ex  parte  Walpole,  84   Cal.    584 845 

Ex  parte  Williams,  4  Ark.   537 524,  533 

Ex  parte  Zeehandelaur,  71    Cal.   238 853 


Farmington,  etc.,  Co.  v.   County  Commissioners,   112   Mass.   206.... 539,  621 

Farquharson  v.  Morgan,  63  Law    Jour.   (U.  S.)  474 464 

Franklin  Academy  v.  Hall,  16  B.  Mon.   (Ky.)  472 602 

G 

Goal  V.  Townsend  et  al.,  77  Tex.  464 223 

Gilman  et  al.  v.  Bassett  et  al.,  33  Conn.  298 2 

Green  et  al.  v.  People  ex  rel.,  150  III.  513 351 

Gresham  v.   Pyron,   17  Ga.  263 84 

Groenwelt  v.   Burwell,   i    Salkeld    144 606 

H 

Hall  V.  Selectmen  of  Sommersworth,  39  N.  H.  511 175 

Hauser  et  al.  v.  State,  33  Wis.  678 577 

Havemeyer  et  al.  v.  Superior  Court,  84  Cal.  327 519 

Henry  D.  Rust  v.  Mary  E.  Vanvacter,  9  W.  Va.  600 764 

Henry  Roser,  etc.,  v.  Marlow  et  al.,  R.  M.  Charl.  (Ga.)  542 579 

Henry  W.  T.  Steinway,  In  re,  159  N.  Y.  250 209 

Hiram  Wilson  v.  ]Mary  Lowe,  7  Caldw.   (Tenn.)    153 548 

Holden  v.  Village  Council,  2,7  Minn.  362 632 

Home  V.  Earl  Camden  et  al.,  2  H.  Bl.  533 498 

Hough  V.  Western  Transportation  Co.,  i  Biss.  (U.  S.)  425 98 

Howard  et  al.  v.  Pierce  et  al.,  38  Mo.  296 506 

Howe  V.  Commissioners  of  Crawford  County,  47  Pa.  St.  361 173 

I 

i  n  re  Adutt,  55  Fed.  376 Rog 

In  re  Ah  Toy,  45  Fed.  795 ;:;5i 

In  re  Chipchase,   56   Kans.    357 849 

In  re  Elisha   Strong,  37   Mass.   484 158,  346 

In  re  Evingson,  2  N.  Dak.   184 663 

In  re  Henry,  13  Misc.   (N.  Y.)   734 728 


XVI  TABLE  OF  REPORTED  CASES. 

{References  are  to  Pages.) 

In  re  James   Turner,  5   Ohio  542 93 

In  re  Jarvis,   66  Kans.   329 760 

In  re  Ker,    18   Fed.    167 813 

In  re  Lemkuhi,   72   Cal.    53 695 

In  re  Noyes,  17  Alb.  Law  Jr.  407 832 

In  re  Roberts,    24    Fed.    132 827 

In  re  Saline  County  Subscription,  45  Mo.  52 556 

In  re  Samuel  Stacey,  10  John.    (N.  Y.)    327 855 

K 

King  V.  Mayor  and  Burgesses,  i  Doug.  149 854 

King  William  Justices  v.   Munday,  2  Leigh    (Va.)    165 17 

Knapp  et  al.  v.  Hellar,  32  Wis.  467 5S5 

L 

Lynch   v.    Crosby   et   al,    134   Mass.   313 575 

V.  Martin,  6  Houst.    (Del.)   487 290 

M 

Manuel  Carriage  v.  W.  G.  Dryden,  30  Cal.  244 531 

Marcum  v.  Ballot  Commissioners,  42  W.  Va.  263 45 

Margaret  Ennis  v.  Lawrence  Ennis,  no  111.  78 576 

Martin,   Governor,  v.  Ingham,  38  Kans.  641 135 

Mathias  v.  Mason,  66  Mich.  524 •  • 584 

Matson  v.  Swanson  et  al.  131  111.  255 698 

McDonald  v.  Jenkins,  93  Ky.  249 104 

Memphis,  etc.,  R.  Co.  v.  Brannum.  96  Ala.  46 r 580 

Miller  v.  Snyder,  6  Ind.   i 755 

Mines  D'or,  etc.,  et  al.  v.  Superior  Court,  91  Cal.  loi 492 

Mobile,  etc.,  R.  Co.  v.  Wisdom,  5  Hcisk.  (Tenn.)   125 20 

Morris  Canal,  etc.,  Co.  v.  State,  14  N.  J.  L.  411 633.  650 

Mowery  v.  City  of  Camden,  49  N.  J.  L.  106 661 

Murphy  V.  Farmers'  Bank,  etc.,  20  Pa.  St.  415 391 

N 

Nellie  Donnelly  v.  People  ex  rel.,  11  111.  552 262 

Newell  et  al.  v.  Hampton,  i  Mar.   (Del.)    i 587 

Nichols  V.  Cornelius,  7  Ind.  611 843 

O 

O'Brien  v.  Tallman,  36  Mich.  12 30 

Osgood   V.  Jones,  60  N.   H.   543 326 


TABLE  OF  REPORTED  CASES.  XVU 

{References  are  to  Pages.) 
P 

Passmore  Williamson's  Case,  26   Pa.   St.  9 77° 

People  V.   Bradley,  60  111.  390 750 

V.  Hake,   81    111.    540 32 

V.  New  York,  etc.,  R.  Co.,  28  Hun  (N.  Y.)  543 i89 

V.  Rensselare,  etc.,  R.  Co.,  15  Wend.   (N.  Y.)    114 346 

V.    Supervisors,    12    Barb.     (N.    Y.)     217 I3 

People  ex  rel.  v.  Board  of  Assessors,  39  N.  Y.  81 590 

V.  Board  of  Police,  etc.,  82  N.  Y.  506 600 

V.    City  of   Chicago,   25    111.   402 238 

V.   City  of   Oakland,  92   Cal.   611 322 

V.  'City  of  Spring  Valley,   129  111.   169 4^5 

V.   Commissioners,   etc.,  30   N.    Y.   72 567 

V.  Common  Council,  3  Keyes    (N.  Y.)   81 222 

V.  Fitzgerald  et  al.,  15  App.  Div.   (N.  Y.)   539 497 

V.  Fowler,  10  Sick.    (N.  Y.)   252 28 

V.  Hillsdale,  etc.,  Co.,  2  John.   (N.  Y.)    190 374 

V.  Kingston,  etc.,  Co.,  23  Wend.    (N   .Y.)    194 363 

V.  Leland  T.   Stanford  et  al,  77  Cal.  300 423 

V.  Mayworm,   5    Mich.    146    44° 

V.  North  Chicago  R.   Co.,  88  111.   537 4o6 

V.  P.   E.   De  Mill   et  at.,   15   Mich.    164 429 

V.  Ridgely  et  al.,  21  111.  64 265 

V.  Riseley,  38  Hun   (N.  Y.)   280  691 

V.  State  Treasurer,  24  Mich.  468 23 

V.  Straight,  128  N.  Y.  545   161 

V.  Suburban   R.   Co.,    178  111.   594 I99 

V.  Supervisors,  etc.,   i  Tiff.    (N.  Y.)    112 245,  512 

V.  The   Governor,   29   Mich.   320    127 

V.  Thompson  et  al.,   16  Wend.    (N.  Y.)    654 388 

V.  Tompkins,  40  Hun     (N.   Y.)    228 647 

V.  Utica  Insurance  Co.,  15  John.    (N.  Y.)    357 353 

V.  West  Brook  et  al.,  89   N.   Y.   152 462 

V.  Whitcombe   et   al.,   55    111.    172 280 

v.,  Williams,     145    111.    573 i6s 

V.  Winson,  52  N.  Y.  Supp.  814 867 

Pine  Bluflf,  etc.,  Co.  v.  City  of  Pine  Bluff,  62  Ark.  196 560 

Pond  V.   Parott,  42  Conn.   13 112 

Prescott  V.   Gonser,  34  Iowa   175 222 

Q 

Queen  v.   Maria  Clarke,   7   El.   &   Bl.    185 770 

Quimbo  Appo    v.  People,  20  N.  Y.  531 493 

Quinchard  v.  Board  of  Trustees,   113  Cal.  664 563 


XVIU  TABLE  OF  REPORTED  CASES. 

(References  are   to  Pages.) 

R 

Raisch  v.  Board  of  Education,  8i  Cal.  542 54 

Ramsey  v.  Carhart,  27  Ark.  13 264 

Regina  v.  ^Mousley,  8  Q.  B.  946. 383 

Rex  V.  Barker,  3  Bur.  1265 i 

V.   Edwin   Wardroper,  4   Burr.    1963 288 

Richmond  Railway  &  Electric  Co.  v.  Brown,  97  Va.  26 195 

Rivers  v.  Mitchell,  Judge,  57  Iowa  193 862 

Robb  V.  Connolly,  1 1 1  U.  S.  624 739 

s 

Sherwood  v.   Ionia  Circuit  Judge,    105   Mich.   540 81 

Shirley  v.  Trustees,  31   Pac.  365 40 

Sikes  V.  Ransom,  6  John.    (N.  Y.)   279 88 

Smith  V.  Board  of  Supervisors,  30  Iowa  531 545 

V.  Langley,  Lee  Temp.  Hardw.  317 502 

Snowball  v.  People  ex  rel.,  147  111.  260 277 

Stacy  V.    Hammond,   96    Ga.    125 30 

Starkweather  v.  Seeley,  47  Barb.    (N.  Y.)    164 626 

State  V.  Benjamin  Potter,  Dudley   (S.  Car.)   295 789 

v.  Board  of  Commissioners,  50  N.  J.  L.  457 414 

V.  Commissioners  of  Roads,  i  Mill.    (S.  Car.)   55 485 

V.  Commissioners,  etc.,  42  N.  J.  L.  510 642 

v.   Douglass,  etc.,   Co.   10  Oreg.   198 412 

V.   Hard,   25   Minn.   460 68 

V.  James  E.  Everett,  Dudley  (S.  Car.)  295 789 

V.  Judge,  etc..  New  Orleans,  4  Rob.    (La.)   48 470 

V.  Leatherman   et   al.,   38   Ark.   81 310 

V.    O'Bryan,    102    Mo.    254 75 

V.  Pawtuxet  7'urnpike  Co.,  8  R.  I.  521 284 

V.  Philpot,  Dudley   (Ga.)   46 845,  858 

V.  Railway  Co.,  40  Ohio   St.   504 372 

V.  Rising,   15   Nev.    164 57 

V.  Schneider   et  al.,  47   Mo.    App.   669 658 

V.  Swepson,  83  N.  Car.  584 621 

V.  Village  of  Bradford,  32  Vt.  50 308,  414 

v.  West  Wisconsin   R.  Co.,  34  Wis.    197 254 

State  ex  rel.  v.  Braun  et  al.,  31  Wis.  600 536 

v.  Carpenter  et  al.,  51   Ohio  St.  83 215 

V.  Cincinnati    Gas,  etc.,  Co.,  18  Ohio  St.  262 419 

V.  City  of  Lyons,  31  Iowa  432 318 

V.  City  of  Milwaukee,  86  Wis.  376 643 

V.  Commissioners  of  Perry  Co.,  5  Ohio  St.  497 219 

V.  Common    Council.   20   Wis.   87 243 

v.  Cory,   Judge,   33    Minn.    178 469 


TABLE  OF  REPORTED  CASES.  XIX 

{References  are   to  Pages.) 

State  ex  rel.  v.  County  Court,  45  Mo.  App.  387 543 

V.  County  Court,  etc.,  41   Mo.  44 • 482 

V.  Court  of   Appeals,   37   La.   Ann.   845 530 

V.  Dobson,    135    Mo.    i 714.  §45 

V.  Douglas    County,    148    Mo.    37 241 

V.  Draper,  48   Mo.   213 IS4 

V.  Elkin    et    al.,    130    Mo.    90 45i,  53^ 

V.  Ellis,   Judge,  47  La.   Ann.    1602 532 

V.  Ensign,    13    Neb.    250 844 

V.  Equitable  Loan,  etc.,  Asso.,   142  Mo.  325 297 

V.  Evans,   88   Wis.    255 472 

V.  Fidelity,  etc.,  Co.,  39  Minn.   538 373 

V.  Francis,    95    Mo.    44 220 

V.  Georgia  Medical    Society,   38   Ga.   608 203 

V.  Guinotte,    156    Mo.    513 582 

V.  H.  L.  Lazarus,  37  La.  Ann.  610 676 

V.  Hardie,   23    N.   Car.   42 396 

V.  Joplin  Water  Works,  52  Mo.  App.  312 196 

V.  Judges,  etc.,  35  La.  Ann.   1075 533 

V.  Kill  Buck,  etc.,  Co.,  38  Ind.  71 375 

V.  Kupferle,  44  Mo.   154 442 

V.  La   Fayette   County  Court,   41    Mo.    221 106 

V.  McAuliffe,  48   Mo.    112 86 

V.  McCracken,  60  Mo.  App.  650 79 

V.  McMillan,    108    Mo.    153 400 

V.  Megown,    89    Mo.    156 13 

V.  Messmore,    14   Mo.    125 433 

V.  Minnesota,   etc.,    Co.,   40   Minn.   213 369 

V.  Mount,  et  al..   151   Ind.  679 220 

V.  Rice,  2>^  S.  Car.  97 118 

V.  Seymour,  67   N.   J.  L.  482 445 

V.  Souders  et  al.,  69  Mo.  App.  472 640 

V.  St.  Louis  Court  of  Appeals,  97  Mo.  276 479 

V.  Supervisors  of  Washington  Co.,  2  Finn.    (Wis.)    552 6 

V.  Vickers,  51   N.  J.  L.    180 410 

V.  Washburn,    22    Wis.   99 78 

V.  Weatherby,   45    Mo.    17 319 

V.  Weeks,    93    Mo.   499 : 248 

V.  Wemfurther,   92    Wis.    546 645 

V.  Williams,   Judge,   48   Arlc.   227 496 

V.  Wilson,   30    Kans.    661 271 

Stultz  et  al..  V.   State   ex  rel.,  65   Ind.  492 323 

Succession  of  Whipple,  2  La.  Ann.  236 510 

Sullivan  v.   Robbins,   109  Iowa  235 11 

Summerrow  et  al.  v.  Johnson,  56  Ark.  85 588 

Swift  V.  Wayne  Circuit  Judges,  64  Mich.  479 569,  625 


XX  TABLE  OF  REPORTED  CASES. 

{References  are   to  Pages.) 

T 

Territory  of   Kansas   ex   rel.   v.   Cutler,   i    Kans.    (2d.    ed.)    565.  ...708,   839 

The  Life  &  Fire  Ins.  Co.,  etc.,  v.  Adams,  9  Pet.   (U.  S.)   571 70 

Thomas  Gray  v.  Court,  etc.,  3  McCord   (S.  Car.)    175 508 

Thomas   Sim's   Case,   61    Mass.   285 723 

Town  of  Woodstock  v.  Gallup,  28  Vt.  587 674 

Trainer  v.   Porter,  45   Mo.   336 514 

Trenton  Water  Power  Co.  In  re,  20  N.  J.  L.  659 26 

U 

United  States  v.  Fox,  3  Mont.  512 793 

V.  Hoffman,  4  Wall.    (U.   S.)    158 477 

V.  Lawrence,  4   Cranch    (U.    S.)    518 797 

V.  New  Orleans,  98  U.  S.  381 179 

United  States  ex  rel.  x.  Auditors,  8  Fed.  473 42 

V.  Bayard,  16  D.  C.  428 122 

V.  Burlington,  2  Am.  Law  Reg.    (N.  S.)   394 184 

Updegraff  et  al.  v.  Crans,  47  Pa.  St.   103 283 

W 

Wales  V.  Whitney,  114  U.  S.  564 700 

Wallace  v.  Anderson,  5  Wheat.    (U.   S.)    291 . 395 

Walton  V.  Greenwood  et  al.,  60  Maine  356 516 

Washington  &  Beresford  v.  Huger,  i  Desa.   (S.  Car.)  361 619 

Whistler   v.    Wilson,   39    Mich.    121 649 

Whitehead  v.  Gray  et  al.,  12  N.  J.  L.  36 595,  621 

Wilkinson  v.  Hoke,  Judge,  34  W.  Va.  403 ^ 490 

Williams  v.  City  of  New  Haven,  68  Conn.  263 239 

Worley  v.   Shong,  35  Neb.  311 604 


TABLE  OF  CITED  CASES. 


(References   are   to   Pages.) 
a^rWhere  n   is  prefixed  to  a  page  number   the  case  is  cited  in  a  note. 


Ableman  v.  Booth  736,  742,  744,  745,  n.  750 

Abney  v.   Clark  12 

Adamson  v.  Lafayette  Co  htS 

Adriance  v.   Lagrave  n.  817 

Agassiz  V.  Superior  Court  492 

Ah  Kee,  Ex  parte  n.  711 

Ainsworth,   Ex  parte  n.    725 

Albany,   Ex  parte  n.   643 

Albert    v.    State  n.    352 

Albin  V.  Board  of  Directors  n.   175 

Aldermen    v.    Directors  553 

Alderson   v.    Commissioners  492 

Alderton   v.   Archer  476 

Allegheny  v.   Gibson  612 

Allen   V.    McKeen  360 

V.   Stone  n.  670 

Ammons,   Ex  parte  820 

Amy  V.  City  of  Galena  n.  68 

Anders  v.  Meredith  625 

Andersen   v.   Treat  n.    848 

Anderson  v.  Colson  n.  17 

V.    Wood  n.    17 

Andover   v.    Grafton  176 

Andrews  v.  State  n.  410 

Ansonia  v.    Studley  n.   40 

Arberry  v.  Beavers  n.  4 

Archie  v.   State  n.  575 

Arkansas  Industrial  Co.  v.   Neel  n.   693 

Armstrong  v.  Stone  765,  n.  778,  n.  840 

Arnold,  Ex  parte  763 

Arnold   v.    Booth  578 

Arnold  v.  Shields  n.  461,  n.  498,  n.  532 

Aston  Parish  v.  Castle  Birmidge  Chapel  518 

Atchison,    etc.    R.    Co.    v.    Howe  139 

Atkins  V.    Siddons,  n.   484 

Attorney  Gen.  v.  Am.  Ex.  Co.  203 

V.   Amos  360 

V.  Bank  of  Niagara  n.  271 

V.   Barstrow  254,  n.   262,   n.   410 

V.   Birmingham,    etc.    R.    Co.  63 

V.   Blosson  254 

V.  Boston  n.    44 

V.   Delaware  &  B.   B.   R.   Co  445 

V.   Drohan  n.   387 

V.   Erie,    etc.    K.    Co.  n.    576 

V.   Foote  435 

V.   Holihan  360 

V.   Hoolihan  361 

V.   Insurance  Co.  331 

V.   Lawrence  60 

V.  Looker  n.  383 

V.  McAdoo  297 

V.   Mayor,   etc.   of   Northampton  561 

V.   Michigan,    etc.  n.    437 

V.    New    Bedford  n.    8 

V.   Perkins  n.  352 

V.  Petersburg   &    Roanoke    K.    Co.        362 


Attorney     Gen.     v.     Pullman    Palace 

Car  Co.  573 

V.   Kaihoad   Co.  4^3 

V.  Sullivan  n.  33.2 

V.   Supervisors  282 

V.  Utica  Ins.  Co.  260,   n.   271,   396 

Atwood  V.   Partec  no 

Aulamier  v.  Governor  694 

Austin   v.    Brock  605 

Avery  v.  Ki-akow  n.  65 

B 

Babcock    v.    Goodrich 

V.  Hanselman 
Badger  v.   United  States 
Bailey  v.   Ewart 

V.   Strohecker 
Baker  v.    Oordon 

V.  Johnson 

V.   Kirk 

V.  Marshall 

V.   Kockabrand 

V.   Superior   Court 
Balcolm,   In  re 
lialdwin   v.   Cooley 
Baldwinsville  Tel.  Co.,   In  re 
Ball  v.  Warren 
Ballou    V.    Smith 


56 

n.    401 

171 

n.   121 

n.    217 

n.   755 

178 

140 

n.   217 

278 

n.    672 

844 

n.    518 

n.    198 

644 

178 

Baltimore,   Ex  parte,  etc.  R.  Co.  11.   76 

Bank    v.    Tallman  78 

Bank  Com'rs  v.  Bank,  etc.  11.  376 

Bank   of   Auburn   v.    Aiken  349 

Bank  of  Augusta  v.  Earle  412 

Bank  of  Natchez  v.  State  of  Mississippi  422 
Barber    v.     San    Francisco  566 

Barker,   In  re  n.  727 

Barksdale  v.  Cobb  n.  84 

Barnard  v.   People  Ins.   Co.  n.    151 

Barnes  v.   Gottschalk  n.   532 

Barnum  v.  Gilman  n.  406 

Barrows   v.    Mass.    ]\Ied.    Society  n.    208 

]5arry.    In   re  n.    739,   n.    778 

v.   Mercein  753 

Barth  v.   Cise  700 

V.  Clise  n.   700 

Bartlett    v.    State  n.    401,    n.    410 

Bass  V.  Taft  n.  32 

Bates  V.   Taylor  n.    134 

Batters   v.    Dunning  no 

Beck  V.  Jackson  n.   109 

Bedard,   Ex  parte  n.   760 

Belleville    v.     Citizens    R.     Co.  200 

Bellinger   v.    Gray  648 

Belmont  v.   Reilly  n.   5 

Benbow   v.    Iowa    City  183 

Bennett  v.   Swain  Co.  n.    106 

Benson  v.  McMahon  801,   811,  n.  817 

v.  State  n.   730 

Bentley  v.  Terry  n.  725 


XXI 


TABLE   OF    CITED    CASES. 


{References   are   to  Pages.) 


Beoninghausen,  Ex  parte  697 
Bernard  v.  Callaway  County  Court  558 
Belts  V.  Williamsburgh  320 
Biddle  v.  Riverton  n.  633 
Bininger,  In  re  n.  508 
Bird,  Ex  parte  696,  n.  730 
Birdsall  v.  Phillips  569 
Birmingham  Fire  Ins.  Co.  v.  Commis- 
sioners n.  217 
Biscoe  V.  Ward  n.  92 
Bishop,  In  re  n  706 
Bishop  V.  Corbet  5^4 
V.  Marks  n.  239 
V.  State  n.  437 
Bisstll,  In  re  n.  789 
Black,  In  re  n.  706 
V.  Brickley  589 
V.  Brinkley  589 
Blackborough  v.  Davis  60,  61 
Blackburn,  Ex  parte  4S3.  "■  498 
Blair  v.  Hamilton  667 
Blake  v.  People  553 
Blaxton  V.  Honor  524 
Bledsoe  v.  International  R.  Co.  140 
Board  v.  Mintburn  46,  49,  52 
V.  Wolfey  n.  151 
Board  of  Education  v.  Spencer  n.  10 
Board  of  Supervisors  v.  Gordon  n.  65 
Bob  V.  State  611 
Bodenham  v.  Kicketts  464,  465 
Bodley  v.  Archibald  492,  n.  503 
Boenninghausen,  Ex  parte  n.  764 
Boggs  V.  Chicago,  etc.  R.  Co.  n.  198 
Boland,  Ex  parte  n.  706 
Bollman  &  Swarthwout,  Ex  parte  726,  730 
Bolton  v.  Gilleran  564,  567 
Bond,  Ex  parte  n.  706 
Bonner,  In  re  n.  706 
v.  Pitts  131 
V.  State  n.  17,  n.  346 
Booth,  In  re  n.  750 
Boreman,  In  re  769 
Boren  v.  Smith  328 
Borgstede  v.  Clarke  n.  243 
Boston,  etc.  R.  Co.  v.  County  Com'rs  n.  601 
Bosven,  Ex  parte  n.  706 
V.  Hixon  n.  763 
Bowler,  Ex  parte  n.  763 
Boyle,  In  re  878 
Boync  v.  Ryan  n.  19 
Boynton,  Ex  parte  n.  575 
Boytcr  V.  Dodsworth  330 
Bradley  v.  Fisher  723 
Bradstrtct,  Ex  parte  73,  n.  97 
Brady  v.  Howe  272,  274 
v.  'labcr  664 
Brainard,  In  re  n.  714 
Branch,  Ex  parte  n.  711 
Braii'llarlit,  Fx  parte  463,  n.  476,  506 
Brandt  v.  .Murphy  n.  64 
Hrashc.ir  v.  Mason  153 
F?r:i/ii-  v.  Commissioners  492 
Braric  v.  Faytttc  Co.  Com'rs  n.  484 
Brf-m  V.  Ark.  ("o.  C!t.  n.  179 
l!rr-nnan  v.  City  of  Wcathcrford  n.  310 
Brriwr,  In  re  n.  730 
Brrwind  ("o.  v.  Flanncry  202 
Bridrwcll,  Ex  parte  797 
l'.rid(,''i»,  Ex  parte  738 
Briiflil  V.  S11HK  625 
J'.rJHm.Tn  v.  Holt  91 
BrirKitcr  v.  Complon  n.  778 
Brinon  v.   I.inKO  442 


Britton    V.    Steber 
Broad    v.     Perkins 
Broder    v.    Superior    Ct. 
Brokaw   v.    Commissioners 
Brooke  v.  Logan 
Brooklyn  v.   Ins.   Co. 
Brooks    v.    Morgan 

V.   Warren 
Broomhead  v.   Chisolm 
Brown,   Ex  parte 
Brown   v.    Commissioners 

V.   Crippin 

V.    Goben 

v.   Kalamazoo    Circuit   Judge 
Brumley  v.   State 
Bryan,   Ex  parte 

V.   Cattell 
Bryant,    Ex   parte 
Brymer  v.   Atkins 
Bryson    v.    Johnson    Co. 
Buckley  v.  Perrine 
Buggin    V.    Bennett 
Bulger,    Ex   parte 
Burch    V.    Hardwickc 
Burder  v.   Veley 
Burdett    v.    Abbott 

v.   Wewell 
Burdey   v.    Veley 
Burdsall    v.    Phillips 
Burger    v.    State 
Burgett   V.   Apperson 
Burnett,    Ex   parte 
Burnham  v.   Kempton 
Burtis,    Ex   parte 
Bush    v.    Neill    Donnelly 
Buskirk  v.   Judge 


659 

465,  467 

n.  498 

n.  iSg 

n.  778 

43 

623 

n.  478 

n.  840. 

n.  498,  n.  817 

n-  1 57 

100,  n.  103 

n.  346 

n.  95 

496 

852 

n.  151 

797 

501 

n.  60s 

n.  778 

458,  464,  467 

n.  760 

n.  484,  n.  532 

n.  469 

805 

525 

461 

544 

n.  513 

589 

n.  763 

329.  330,  332 

69 

266 

492 


Butler  V.   Selectmen   of   Pelham  ifS 

"750 


C.    P.    Railroad   v.    Railroad  583 

Cable  v.  Cooper  n.  712 

Cain  V.  Brown  n.  300 

Cairo   V.    Everett  n.   44 

Caldwell   v.    Bell   &    Graham  264 

V.   Lawrence  837 

Call,   Ex  parte  n.   69s 

Callicot,    In    re  n.    708 

Camman   v.    Bridgewater,   etc.    Co.        n.   402 

Campbell,  Ex  parte  n.  725 

V.  Talbot  n.   448 

V.   Wallen's  Lessee  n.    103 

Capital  City,  etc.  Co.  v.  State,  n.  260,  n.  448 


Carriaga    v.    Dryden 

V.   Sanchez 
Carlson  v.   Bodelson 
Carmel,    etc.    Co.    v. 
Carmichael,    In    re 


Small 


531 
S3I 
699 

n.    429 
n.    840 


Carpenter    v.     Bristol     Commissioners 

n.    74,    177 
Carrirk   v.    Lamar  n.    127 

Carroll    v.   Campbell    and    Hauck  480 

V.   ITourk  480,   481 

Casby  v.   Thompson  n.   484 

Cassidy    v.    Millerick  668,    670,    n.    670 

V.   Young  n.   103 

Castcrline    v.    Gummersall  4'*' 

("ate  V.   Turbcr  n.   288 

Cazin,   In  re  n.   714 

Ccn.  Dist.  Tel.  Co.  v.  Commonwealth,  n.  198 
Central,  etc.  R.  Co.  v.  People  n.  448 

CVnttal   Par.    R.    R.   Co.    v.    Board   of 

Equalization    of    Placer    Co.  564 


TABLE   OF    CITED    CASES. 


XXlU 


(References   are   to  Pages.) 


Central  Union  Tel.  Co.  v.  State  n.   198 
Chable  v.  Nicaraugua  Canal  Construction 

Co.  n.   214 

Chalk  V.  Darden  141 

Chamberlain  v.   Governor  131 

V.   Sibley  140,    148,   i5> 

Champion,   Ex   parte  n.   730,   n.848 

Chance  v.  Temple  n.   10 

Chandler  v.  Antrim  Cir.  Judge  n.  75 

V.   Monmouth    Bank  662 

Charbonnet  v.   Dupassaur  n.  605 

Chase    v.    Board  646 

Cherokee   v.   Fox  850 

Chesebro  v.   Babcock  n.    10 

Cheshire  v.   People  280,   417 
Chesshire  v.  People       n.  264,  n.  401,  n.  410 

Chester    v.    Colby    '  520 

Che  Gong  v.    Stearns  n.  92 

Charles  River  Branch  R.  R.  v.  County 

Commissioners  461 
Charles    River    Bridge    Co.    v.    Warren 

Bridge  i93 
Charlestown    v.    County    Commissioners  540 

Charlestown    Branch    R.    R.  v.    County 

Commissioners  461 

Chicago    V.    People  416 

Chicago,  etc.R.  Co.  v.  Commissioners,  n.  45 

V.   Hempstead  198 

V.  People  192 

V.   Wilson  n.     97 

Chicago  R.  I.  &  P.  R.  R.  Co.  v.  Young  544 

Chicopee    v.    County    Commissioners        540 

Childs   V.    Crawford  672 

Christe,    Ex    parte  n.    507 

V.   Bayonne  n.    575 

Chumasero    v.    Potts  140,    n.    151 

Churchill  v.  Walker  n.  401 

Cincinnati    Volksblatt    Co.    v.  Hoffmeister 

n.    25 

Circuit  Attorney  v.  Bernoudy  297,  299 

City    v.    Topeka    R.    Co.  203 

Clark,  Ex  parte  n.  789 

Clark,    In   re  821 

v.   Bayer  n.    778 

V.   People  267 

V.   Rosenda  n.     503 

v.   Sharum  169 

Clarke,     Ex    parte  760 

Clayton  v.   Heidelberg  483,    n.    513 

Clearly    v.     Deliessline  331 

Cleaver    v.    Com.  272 

Clerk     V.     Andrews  524 

Clifford    V.    Parker  n.    532 

Coats    V.    Suckerman  524 

Cobb   V.    Lucas  540,    586 

Cobbett  V.   Hudson  n.   840 

Cockburn    v.    Union    Bank  212 

Cochrane   v.    McCIeary  328 

Coddington    v.     Stanton  n.     629 

Cody   V.    Lennard  n.    484 

Coe   V.    Lake   Co.  329 

Coffman    v.    Keighty  820 

Cohn,   Ex  parte  696,   n.    789 

Coker    v.    Superior    Court  n.    476,    522 

Cole   V.    Dyer  n.   414 

Coleman   v.    Dalton  n.   476 

Collins  V.  Davis  n.  6^33 

v.   Huff  n.    332 

Colton    v.    Price  328 

Combs  V.    Ditch   Co.  n.    198 

Commissioners  v.   Alleghany  n.    121 

V.   Commissioners  62 

v.   Commonwealth  n.  189 

V.  County  a8 


Commissioners    v.    Giffin  561 

V.    People  202 

V.   Portland,    etc.    R.    R.  Co.                 203 

V.   Spitler  n.   532 

Commissioners,    etc.    v.    Supervisors    of 

Carthage  547 

Commissioners  of   Patents  v.    Whitely 

100,    112 

Commonwealth    v.    Allegheny    Bridge    Co. 

n.   271,    403,   n.    414 
V.  Allen  27s,  280,  n.  288,  n.  300 

V.   Bala,    etc.    Co.  n.    288 

V.   Biggs  770 

V.  Birchett  n.  262 

V.  Blatt  n.    778 

V.   Blue    Hill    Turnpike  540,     671 

V.   Bowler  321 

V.   Briggs  768 

V.   Brown  398 

V.   Browne  379 

V.   Burrell  260,    331,    392 

V.   Cain,    et    al.  378,    382 
V.   Chandler                   690,    n.    693,   n.    730 

V.   City    of     Pittsburgh  238 

V.   Commercial   Bank  n.   376,   ri.   437 

V.   Commissioners  153 

V.   Cross    Cut    R.    Co.  n.    440 

V.   Curby  n.    840 

V.   Dallas  379 

V.   Dearborn  n.   271 

V.   Denworth  n.    332 

V.   Dillon  n.    410 

V.    Doran  n.    708 

V.   Douglass,  et  al.  379,  382 

V.   Downing  541 

V.   Dumbauld  n.   345 

V.   Eastern     R.     R.     Co.  203 

V.   Filer  n.     444 

V.   Fowler  400,    n.   410 

V.   Frink  n.    877 

V.   Garrigues  n.    280 

V.   Gill  n.    711 

V.   Hamilton  765 

V.   Hammond  n.   840 

V.   Hampden  177 

V.   Ickhoff  614 
V.  Jones                  293,  n.  300,  403,  n.  448 

V.   Keeper,    etc.  797 

V.   Kirkbride  n.   864 

V.   Leach  278 

V.    Leech  276 

V.    Lexington,   etc.   Co.  n.   401 

V.  Lyndall  n.    243 

V.   McAleese  n.   706 

V.   McCarter  n.    300,    n.    406 

V.   Moore  n.    714 

V.   Murray             n.     371,  377,     378,     382 

V.   Peck  n.  840 

V.   Peters  n.    643 

V.   Phoenix   Iron   Co.  211 

V.   Pittsburgh  n.   184 

V.   Pittsburgh,  etc.   R.  Co.  n.   376 

V.   R.    A.    Balph  607 

V.  R.    R.    Co.  403 

V.   Ridgeway  n.  708,  711 

V.   Sheldon  539 

V.   Simpson  609 

V.   Small  n.    345,    405 

V.   Smith  382 

V.   Spreneer  n.   448 

V.  Turnpike    Co.  413 

V.  Union    Ins.    Co.  414 

V.  Union,  etc.  Ins.  Co.  n.  401,  n.  411 


XXIV 


TABLE  OF   CITED  CASES, 


{References  are   to  Pages.) 


Commonwealth  v.  Union  Fire  Ins.  Co.  392 

V.  Union  Ins.   Co.  of  Newberryport  379 

V.  Walter  272,   275 

V.  Walker  54o 

V.   West   Boston    Bridge  54° 

V.  Wickersham  n.    157 

V.   Winthrop  541,  n.  643,  649,  n.  653,  667 

V.  Woelper,    etc.  3**^ 

V.  Wray  n.    261,    379,    382 

Commonwealth,  ex  rel.  v.  Lucky  718 

Commonwealth    Bank   v.    State  n.    429 

Commonwealth,  ex  rel.  etc.  v.  The  Mayor 

of    Lancaster  206 

Commonwealth   of    Ky.    v.    Wm.  Denison   2 

Conklin   v.    Commissioners  632 

V.  Fillmore  Co.  n.   629 

Connecticut    River    R.    Co.    v.    County 

Com'rs                                          n.  459,   n.    519 

Conover    v.    Devlin  665 

Convery   v.    Conger  n.    280 

Conway,    Ex   parte  n.    750 

Coodell  V.   Kalamazoo  n.  629 

Cook  V.   Candee  n.    121 

V.  City    of    Ansonia  241 

V.  Electric  Co.  588 

V.   License  524 

V.  Welch  341 

Cooke  V.    Bangs  723 

Cooper,  In  re           476,  n.  503,  n.  507,  n.  789 

Cooper    V.    Barker  81 

Cooper  County  v.  Geyer  558 

Coosa,   etc.    R.    Co.   v.    Moore  153 

Copeland  v.  State                        n.  106.  n.  778 

Copenhaver,  In  re                        n.  yu^.  n.  750 

Cornado   v.    San   Diego  n.    513 

Corrie  v.   Corrie  n.   778 

Corrigan,  In  re  n.   695 

Cortelyou  v.   Ten   Ecyc  n.   97 
Cotten    V.    Ellis                                  140,    n.    151 

v.   Governor  131 

County    v.    Court  87 

County  Court  v.   Armstrong  492 

v.   Boreman  492 

County   of   Calveras  v*.    Brockway  n.    4 

County  of   Cass   v.    Johnston  183 

County  of  Pike  v.   State  117 

County  of   St.    Louis  v.    Lind  558 

V.   Sparks  558 

Coupland   v.    Tullar  n.    575 

Cousins  V.  Cowing  539 

Covcll    V.    Heyman  738 

Covington    Co.     v.     Keith  203 

Covington,  etc.  Co.  v.  Moore,  n.  383 

Cowcll    V.    Patterson  797 

Cowen  V.  Wildwood  n.  660 

Cowing  V.  Ripley  n.  640 
Craemcr  v.  Washington 

(Tnig.    Ex  parte  763 

Oandnll,  In  re  n.  760 

(!ranc,     Ex     parte  675 

("ranc  v.  ("hicaRo,   etc.   R.   Co.  n.    196 

(.■fanH  v.   Francis  139,  n.   243 

Crnwforfl  v.  Scio  n.  643 

V.  Townsiiip  Board  667 

CrdKhtoii   v.    Mason  564 

Cronii,    In    r<-  n.    103 

Croiw  v.  W.  Va.  &  R.  Co.  n.  225 

Crouch  V.   Collins  525 

("rovatt   v.   Mason  n.   406 

Crystal    Icr.   r\c.   Co.   v.    State  n.   368 

riillrit)   v.    I.ntitncr  u.    239 

Culvrr     V.     Bank  418 

Cummins  v.    Wrhh  11,    84 


(.'unningham,    In    re  138 

Cushing    v.    Gay  585,    n.    629 

V.  Gray  n.   663 

C'uyler  v.  Trustees  of  Palmyra  659,  n.  660 


]  lalton  V.  State 
I  >ane  v.  Derby 
1  )aniel   v.    Phillips 

V.  Warren  Co. 
Daniels  v.   Long 

V.  Towers 
l^arby    v.    Cosens 
Darley   v.    Queen 

V.  Reg 
Darling   v.    Boesch 
Darrow   v.   People 
Davidson    v.    State 
Davies,    Ex   dem.   v.    Doe 
Davis,  Ex  parte 
Davis  V.  City  Council,  etc. 

V.   Horn 

V.   State 

V.  York  Co. 
Dawson,    Ex   parte 
Dawson  v.  Thurston 


n.  157 

46 

650 

n.  10 

n.  121 

721 

493 

326 

n.  332 

633 

n.  280 

n.  332,  n.  383 

857 

517,  n.  7.14 

n.  4o6 

n.  629 

n.  346,  n.  438 

n.  10 

n.  832 

48 


Day    V.    Aldermen    of    Springfield  461 

v.  Board  n.  507 

Dayton    v.    Paine  476 

V.  Payne  n.  478 

Deaderick   v.    Wilson  n.    2:4 

Dean   v.    State  11.    579 
Decatur   v.    Paulding 

100,     no,  112,     126,    n.     127 

V.    Spaulding  153 

Deer  v.  Commissioners  n.  670 

Delaney    v.     Goddin  48 

Delano,  In  re  n.  778 

Delehanty  v.  Warner  328 

Deniarest  v.   Wickham  331,   n.   401 

Dennet  v.   Governor  140 

Denver,    In   re  n.    151 

Denver,   Ex  parte,  etc.   R.  Co.  n.   74 

Deny,    Ex    parte  716 

Depoyster   v.    Baker  n.    8 

Derlin   v.    Dalton  n.    575 

Derton   v.    Boyd  n.    575,    n.    643 

Detroit  v.   Board  of  Public  Works  328 

Detroit,    etc.    R.    Co.    v.  Gartner        n.    103 

Dew    V.    Judges  19,    49,    159 

De    Witt   V.    Duncan  564 

Dexter    v.    Town    Council  562 

Dickey   v.    Reed  328,   331 

Dillard    v.    Dunlop  n.    92 

Diiiimick  v.   Tompkins  n.   706 
Distilling,  etc.  Co.  v.  People     n.  368,  n.  437 

District  No.  2  v.   District  No.   i                   178 

Dobbs  V.    Stauffer  n.    45 

Dodge    V.    Essex    Co.  178 

Dolby  V.  Remington  n.   527 

Donohue  v.  Will  Co.  n.  550,  666 

Doolittlc  V.    County  46 

V.  Court  49 

V.  R.    R.   Co.  551 

Doo  Woon,   Tn  re  830,   n.  832 

Dorsey    v.    Ansley  n.    288 

Douglass'   Appeal,  n.   35^ 

Douglass    v.     Scott  321 

V.  WicliHc  694 
Douglass  County    Koad   Co.   v.   Abraham  412 

Doyle,  In  re  n.  778 

Doyle  V.    Raliigli  11.    161 


TABLE  OF   CITED   CASES. 


XXV 


{References  are   to   Pages.) 


Draining    Co.    v.    State 

424 

Duane  v.  McDonald 

n. 

157 

Ducheneau    v.     House 

n. 

484 

Dudley    V.    Mayhew 

280 

DufFet  V.  Crosier 

143 

Duggen  V.  McGruder 

n. 

590 

Duncan,   Ex  parte 

800 

Dunklin  Co.  v.  County  Ct. 

n.  2 

V.    District    Ct. 

108 

Durham    v.    United    States 

549 

Dutton  V.  Hanover 

n.  8 

Dye   V.    Noel 

n. 

601 

Dyer   v.    Lowell 

630 

Dynes  v.   Hoover 

E 
Earl   of   Shrewsbury's  case 

619 

366 

East  Boston  Ferry  Co.  v.   Boston 

60 

East   Dallas  v.    State 

n. 

323 

Easton  v.  Lehigh  Water  Co. 

n.  8 

Eaton  V.  State 

n. 

410 

Eckman    v.    Chicago,    etc.    R.    Co. 

202 

Ede  V.  Jackson 

n. 

518 

Edgar    v.    Greer                                   545, 

583 

Edinburgh,    etc.    R.    Co.    v.    Philip 

63 

Edmunson,     In     re 

676 

Edwards  v.   United   States 

169 

Eggleston  v.   Kent  Cir.  Judge 

ti 

.  68 

Eliason  v.  Coleman 

n. 

387 

Elizabeth  v.  County  Court 

n.  8 

Elkins   V.    Ethearn 

515 

Ellis,  In  re 

n. 

706 

Ellis  V.  Commissioners 

n. 

157 

V.  Fleming 

469 

Ellsworth    V.    Gorwart 

n. 

214 

Emanuel  v.  State 

n 

706 

Emporia   v.    Randolph 

n 

•    95 

Englebrecht,    In    re 

498 

Ennis  v.   Ennis 

577 

Ensign  Manufacturing  Co.  v.  Carroll  n.  503 

Esmeralda   Co.    v.  Dist   Ct.               552,  561 

Esselborn,    In  re  n.  708 

Evans  v.  Foster  n.  802 

V.  Lewis  553 

V.   Thomas  n.  243 

Everett,  In  re  n.  848 

Everidge  v.   Berrys  n.  660 

Evingson,    In   re  641 

Kvingston,    In    re  n.  653 

Ewing  v.   State  n.  419 

V.  Thompson  n.  590 

Ezeta,  In  re  n.  817 


Fagan,    In   re  n.    877 

Fanton,    In    re  n.    706 

Farez,    In   re  n.    817 

Farmers'  Loan  &  Trust  Co.  v.  Henniflg  192 
Farmington,  etc.  Co.  v.  County  Com'rs 

n.  591 
Farmington  River  Power  Co.  v.  Com- 
missioners 461,  575,  667 
Farmington  Water  Co.  v.  Com'rs  584 
Farnsworth  v.  Boston  64 
Farrell,  In  re  n.  708 
Farrington  v.  Turner  n.  332 
Fay,  Ex  parte  552,  553 
Feicheimer  Bros.  v.  Louisville  762 
Ferguson,  Ex  parte  781 
Ferguson  v.  Earl  of  Kinnoul  146 
V.  Jones  644 
Ferrens,  In  re                                               n.  840 


Field,  Ex  parte  n.  877 

Finley,  Ex  parte  n.  854 

First  Nat.  Bank  v.  Lancaster  n.  221 

Fishel  V.  Circuit  Judge  n.  40 

Fisher,    Ex   parte  n.    764 

V.  McGirr  n.     763 

Fisk  V.   Union   Pac.    R.    R.    Co.  n.    103 

Flagg  V.  City  of  Palmyra  n.   184 

Flagg  V.  Peterbaugh  n.  92 

Fleischauer   v.    West    Hoboken,  643 
Fleming    v.    Commissioners 

n.  459,  n.  484,  492,  n.   507 

V.  Githrie  492 

V.  New  Brunswick  661 

Flint,  etc.  R.  Co.  v.  Donovan  n.  103 

Flippen,    Ex    parte  69 
Flourney    v.     City    of    Jeffersonville 

46,   n.   97,    III 

Fogle  v.  Gregg  n.   19 

Fong  Yue  Ting  v.   United   States  n.   817 

Ford  V.  Turnpike  Co.  446,  447 

V.  State  473 

Forster,    In    re  n.   469 

Foster,    Ex    parte  n.    708 

V.   Bacon  78 

V.   Dunkin  558 

Fowler,  In  re                                     n.  817,  826 

Fox   V.    McDonald  n.    114 

Francis  v.   Atchinson,   etc.   R.   Co.  139 

Frazee,    In   re  n.    763 

Freeman,    In    re  n.    778 

Freeman  v.  Morris  625 

V.   Selectmen  of  New  Haven  112 

Freemont   v.    Crippen  56 

Free  Pass  Ass'n  v.  Nichols  n.  8 
Freetown    v.    County    Commissioners        539 

French  v.  Cowan  n.   332 

V.  Noel  523 
Freon    v.    Carriage    Co.                216,    n.    217 

Fretwell    v.    Troy  850 

Frey   v.    Michie  n.    323 

Frizell  v.  Rogers  594 

Full  V.   Huchins  458,   501 

Furbush  v.   Cunningham  n.   590 


Gaines    v.    Thompson  112,    505 

Galveston,  etc.  K.  Co.  v.  Gross  141 

Garbutt  v.  Rochester  State  Line  R.  Co.  192 
Gares  v.  N.  W.  Nat.  Bid.  etc.  Ass.  n.  6 
Garza,  Ex  parte  n.  763 

Gegge    V.    Jone  525 

Georges  Creek  Coal  &  Iron   Co.  v.   Com- 
missioners n.  65 
Gerdes   v.    Champion  551 
Gere   v.   Weed  529 
German  Lutheran  Church  v.  Woeper  et 

al.  378 

Gery   v.    Hopkins  211 

Gibben,  In  re  n.  763 

Gibbs    V.     County    Commissioners  540 

Giboney   v.    Rogers  n.    97 

Gilbert   v.    Hebard  461 

Gill    V.    Taylor  483 

Gillenwater  v.  Mississippi,  etc.  K.  Co.  268 
Gilroy's    Appeal  n.    332 

Gilroy   v.   Commonwealth  n.   448 

Girard    v.    Bissell  850 

Gist,    Ex    parte  820 

Gleason    v.     Sloper  539,     540,     541 

Glover   v.    Heath  629 

Glover  v.   Reid  n.   575 


XXVI 


TAI.LE  OF   CITED   CASES. 


{References  are   to  Pages.) 


Goddard  v.    Seymour 

V.   Smithett 
Godfrey    v.    Liewellin 
Golding  V.  Jennings 
Goldsmith  v.  Owen 
Gomershall   v.    Bishopp 
Goodin,  Ex  parte 


III 

412,  444 

525 

n.  584 

n.  498 

526 

n.  789 


Goodrich    v.    Commissioners  649 

Gordon    v.    Longest  102 

Gorges    v.    Blackbur  n.    243 

Gould    V.    Gapper  461,    483 

Governor    v.    iNelson  140 

Graffty  v.  Rushville  762 

Graham  v.   Cowgill  271 

V.   Horton  i39 

V.  People  96,  419 

Grant    v.    Chamberlain  629 

V.   Gould  4t>i 

Graver  v.  Fehr  n.   601 

Graves,   Ex  parte  n.  97 

Gray,    In   re  760 

Gray  v.  Court,  etc.  n.  463 

v.   State  140,   n.    151 

Greeley    v.    Passaic  661 
Green  v.  African  Methodist,  etc.   Church 

n.  243 

Green  v.   Burke  n.   695 

Green   v.    D.    &   C.    R.  Co.                          192 

Greenough,     In    re  826 

Greenwood    Land    Co.    v.    Routt  n.    151 

Gresham    v.    Ewell  n.    507 

Grice,  In  re  n.  711 

Griebel  v.  State  n.  332 

Grier  v.  'lay lor  n.  513 

Griffin  v.    Wilcox  n.    877 

Grignon's   Lessee  v.   Aster  720 

Grin   v.   Shine  n.   817 

Groenvelt    v.    Burwell  579,    599 

Groome  v.  Gwinn  140,  n.  151 

Grove    v.    Allen  12 

V.   Van  Duyn  663 

Guillian   v.    Gill  524 

Gunn's   Administrators  v.    County    of 

Pulaski  n.    95 

Gunning    v.    Sheahan  n.    19 

Gunton  v.    Ingle  n.   300 

Guzman  v.  Walker  n.  288 

H 

Hadden    v.    People  831 
Hacbler  v.  N.   Y.  Produce  Exchange       210 

liagar  v.   Board,   etc.  n.   600 

Ilagncr    v.     Hayberger  328 

Haines  v.   Corliss  629 

Hair    v.     rUirncll  n.     217 

Hakewilj,    In    re  n.    834 

Hall  v.   Durham  n.  605 

V.   Norwood  478 

V.  People  118,    202 

V.    Srlt-ctmcn  n.     175 

Hallcr,    In    re  n.    854 

n.ilm.-in    v.    Davis  n.    532 

Ham   v.    State  n.   837 

Hamilton,  Kx  parte  n.  476 

Hamilton  v.   City  of  Pittsburgh  236 

Hamilton   v.   State  n.    114 

Hammrr  v.   State  n.   448 

HiinKrr  v.   Keating  n.  497 

Hannibal  &  St.  Joseph  R.  Co.  v.  Morton 

Hardi  antic  v.  M<l.  etc.  R.  Co.  n.  25 

Hardy,    V.x   patrr  n.    760 

HarRrovc  v.   Hunt  n.   410 


Harkins    v.    Sancerbox  529 

v.  Supervisors     of     Scott     Co.  529 

Harland     v.     Territory  n.     837 

Harming    v.    Wyre  460 

Harpending  v.  Haight  140,  141,  n.   151 

Harrick   v.    Carpenter  553 

Harrington    v.     Berkshire  Co.                     178 

v.   Co.     Commissioners  177 

Harris,    Ex    parte  n.    jo6,    n.    764 

v.  Barber  584,    n.    591 

v.   Mississippi,    etc.    R.    Co.  n.    376 

v.   Pounds  n.    448 

v.   Whitney  650,   n.    653,   665 

Hartman,   Ex  parte  n.  706 

V.  Aveline  822,    824 

Hartranft's    Appeal  140,     147 

Hartsfield    v.     Jones  623 

Harwood   v.    Marshall  n.    157 

Hasbrouck    yi.     Milwaukee  182 

Hatter  v.   Eastland  n.  600 

Hauck,  In  re  n.  763 

Iiangen  v.   Water  Co.  200 

Ilaupt  V.   Rogers  n.  271,  n.  387,  n.  410 

Havemeyer  v.  Superior  Court  n.  463,  n.  479 

V.   Supreme    Ct  583 

Haverhill    Bridge    Proprietors    v.    County 

Commissioners  540 

Havlik,    In   re  789 
Hawkins  v.  Governor     134,   140,   142,  n.   151 

V.   i^itchfield  n.     106 

Hay   V.    People  n.    264 

Hayden   v.    Attleborough  188 

Hayes,   Ex  parte  n.   84 

Haymore    v.     Com.    of    Yadkin  n.    4 

Heane   v.    Rogers  365 

Heath,    Ex    parte,    et   al.  341 

Hecker  v.   Jarrett  n.    714 

Heffner   v.    Commonwealth  39 

Heine  v.  Levee  Commissioners  n.    187 

Henderson  v.  Heyward  n.  763 

V.  State  n.    179 

Henrich,    In   re  811 

Henry  v.   Steele  n.   532 

Henry   v.    Taylor  n.    175 

Hensliaw,    Ex    parte  n.    346 

Hequoemberg  v.   Lawrence  442 

Herrick    v.    Carpenter  561 

Hibler   v.    State  825 
Hickey  v.  Oakland  Co.  Supervisors      n.  179 

Hill,    Ex  parte  n.    523 

Hinchman   v.    Cook  662,   663 

Hinckley    v.    Breen  n.    406,    n.    437 

Hinze  v.    People  n.   332,    554 

Hipp    v.    Martin  n.    605 

Hoard,  Ex  parte  n.   103 

Hodges,   Ex  parte  n.   763 

Ilodgnian    v.     Richards  332 

ITofTmann  v.   Superior  Ct.  n.   670 

Hoke    V.    Henderson  170 

Holmes   v.    Jennison  n.    2 

Holyoke  v.  Ilaskins  n.  778 

Home   Ins.   Co.   v.    Flint  n.   461,   r^   484 

Hooper,    In    re  \  822 

V.   Farmer  n.     225 

V.    News  n.    243 

Hopkins    V.     I'-oglcr  583 

V.  Thomas  n.    106 

Horcy  V.    State  n.    151 

Horn    V.    Whittier  176 

Horner    v.    Doe  756 

Iloskins  v.   Baxter  n.    725 

llotchkiss  V.  Chcvaillier  n.  672 

Hougc  V.  Baker  n.   151 

Hough     V.     Transportation     Co.  98 


TABLE  OF   CITED   CASES. 


XXVll 


{References  are  to  Pages.) 


Houston  V.   Neuse  River,   etc.  Co.       n. 
Houston,   etc.   R.   Co.   v.   Randolph 
Hovey    v.    Elliott 

V.   Morris  n. 

Howard  v.  City  of  Huron  n. 

V.   Pierce 
Howell  V.  Allen  n. 

V.  Cooper  n. 

Rowland    v.    Eldredge  29, 

Hoxsey  v.   Patterson  662, 

Hoyt,  Ex  parte  n.  84,  100, 

Hughes   V.    Parker  328, 

Hull    V.    Mallory 

V.  Superior  Ct.  n.  332,  n.  478, 

Hullman    v.    Honcomp  n.    284, 

Hulse  V.  Marshall 
Hulscman    v.    Rems 
Humboldt  Co.   v.   Churchill  Co.  n. 

Hunt    V.    Cemetery    Asso.  n. 

Hunter    v.    Moore  n. 

Hutchinson    v.    Wybourne 
Hutson    V.    Lowry 
Huyler   v.    Cragin    Cattle   Co. 
Hyatt  V.  Allen  n. 

Hyde   v.    Holmes  n. 

V.  Jenkins  n.    714,   n. 

Hyde    Park    v.    Co.    Commissioners 
Hyslop     V.     Finch 

V.  French 


414 
140 
761 
840 
221 
483 
SSO 
179 
no 

663 
676 
331 
664 
521 
328 

n.  8 
328 
17s 
383 
484 
460 
492 
211 
507 
214 
840 
188 
S'93 
666 


Illingworth  v.  Rich  n.   600 

Illinois,    etc.    R.   Co.   v.   People  n.   4 

Independent  Pub.  Co.  v.  American  Press 

Asso.  n.  59c 

Indpls.    etc.    R.    Co.    v.    State  192,    200 

IngtrsoU   V.    Buchannon  492 

Inhabitants,   etc.   v.   Commissioners  668 

Inhabitants  of  Gushing  v.  Gay  583,  584 

Insurance   Co.    v.    Cleveland  105 

Iron  Co.  V.  Schubel  644,  666 

Iske  V.   Newton  n.  633 

Iveson   V.    Harris  536 


Jackson,  In  re 

V.   Boyd 

V.   People 
James    v.    Commissioners 

V.   Stokes 
Jameson  v.   People 
Jaquith   v.    Fuller 

V.   Hale 
Jas.  G.  Brannun  v.  M.  &  C.  R. 
Jefferson   v.   Bishop  of  Durham 
Jefferson    Co.    v.    Cowan 
Jelley   v.    Roberts 
Jenkins    v.    Baxter 
Jennings    v.    Tisbury 
Johnson   v.    Boon 

V.   Mann 

V.   Moss 

V.   Terry 
Johnston   v.    Riley 
Jones,     Ex     parte 
Jones     V.     Commissioners 

V.   Darnall 

V.   James 

V.   Kelly 

V.   Leonard 

V.   Owen 
Jordan  v.  Hayne 


n.  854 

n.   763 

573 

39 

n.   498 

314,   n-    31S 

n.    476 

1-    575 

580 

489 

660 

n.    92 

•    383 


R. 


n. 

527 

n. 

161 

544 

769 

822 

797 

327 

n. 

778 

469 

n. 

802 

82s 

469, 

522 

n. 

575 

Joseph   Smith,   Ex   parte 
Justice   V.    Jones 

K 


826 

n.    103 


Kadisch    v.    Association  202 

Kaine,  In  re  618,  700,  n.  700,  810,  .812 

Kane    v.    People        279,    280,    n.    280,    299 


Kanouse  v.   Martin 

99 

Kast  v.   Kathern 

n. 

672 

Kayser,    Ex    parte 

852 

V.  Trustees,    etc.             n.    310, 

320, 

322 

Keigwin    v.    Commissioners 

553 

Kelley  v.  Toney 

n.   87 

Kelly   V.    State 

n. 

750 

Kemp    In    re 

n. 

877 

Kendall    v.     Stokes 

153 

V.  United     States 

n.  4,    5,   6,   n.  97,    100,   no, 

121, 

125 

126,  n.   127, 

177. 

178 

Kendrick  v.   State 

611 

Kenney  v.  Consumers'  Gas  Co. 

n 

414 

Kentucky  v.  Dennison                       5 

819 

830 

Keough  V.  Board  of  Aldermen  n. 

7.  n 

106 

Kern  v.   Foster 

n. 

579 

Kerr    v.     Illinois 

n. 

838 

Keys  v.  Board,  etc. 

n 

601 

Kierman    v.    Jersey    City 

643 

Kilpatrick   v.    Commissioners 

641 

Kimball  v.   Boston,  etc.   R.   Co. 

19? 

Kimball   v.    Lamprey 

178 

v.  Union    Water    Co.            n. 

;,    n. 

217 

King    V.    Amery 

348 

V.   Babb 

211 

V.   Barker 

88, 

675 

V.   Bethel 

700 

V.   Bishop 

19 

V.   Bishop   of   Oxford 

230 

V.   Bonne 

759 

V.  Bower 

168 

V.   Canterbury 

19 

V.   City  of  Chester 

230 

V.   City   of    London 

350 

V.   Corporation  of  Bedford 

355, 

675 

V.   Delavel 

767 

V.   Eaton 

651 

V.   Ellis 

759 

V.   Greenhill 

767 

V.  Hansel! 

381 

V.    Heaven 

276 

V.   Higmore 

399 

V.   Inhabitants 

tA 

V.   Inhabitants  of  Cumberland 

V.   Inhabitants     of     Nottingham 

611 

V.  Justices    of     Dorset 

483 

V.   Lane 

294 

V.   McLean    Asylum 

n. 

739 

V.  Margate    Pier    Co. 

230 

V.   Marks 

792 

V.   Marsh 

724 

V.   Mayor     of     Colchester 

156, 

675 

V.    Mayor    of    York 

160, 

230 

V.   Mein 

292 

V.   Merchants  Tailors  Co. 

211 

V.   Milverton 

62 

V.  Newling 

294 

v.  Nicholson   et  al. 

358 

V.   Ponsonby                          272, 

274, 

276 

V.   Railroad 

583 

V.   Raines 

168 

V.   Sarjcant 

292 

V.   Shepherd 

355 

V.   Sir  William  Luther 

269 

V.   Stafford 

19 

XXVlll 


TABLE  OF   CITED   CASES. 


^References  are   to  Pages.) 


King   V.    Suddis 

80s 

V.   Whatbread 

590 

V.   Wheeler 

59 

V.   Winchester 

n. 

1 57 

V.  Winton 

855 

V.  Yorkshire 

n. 

103 

Kingsland    v.    Gould 

n. 

584 

Kinloch    v.    Harvey 

462 

Kipp   V.    Lichtenstein 

418 

Kirby  v.   State 

n. 

693 

V.  Sup.   Ct. 

583 

Klein  V.  Supervisors 

n. 

239 

Kline   v.   Kline 

n. 

727 

Klock   V.    People 

796 

Knapp    V.    Heller 

583 

Knowles   v.    Holden 

46s 

V.  Muscatine 

II 

Rnox  Co.  V.  Aspinwall 

183, 

184 

Koepke    v.    Hill 

761,    n. 

764 

Koon,   Ex  parte 

n 

•    75 

Kraus,     Ex    parte 

836 

Labette  Co.  Commissioners  v.  U.  S.  n.  225 

La  Croix  v.  County  Com'rs      n.  484,  n.  513 

Lagrange    v.    State    Treas.  583 
Lake  Erie,  etc.  R.  Co.  v.  State             n.  44 

Lamar  v.   Commissioners                        n.  6i9 

Lampert,  Ex  parte  711 

Lanipert,   In  re                                         n.  708 

Lamphere  v.   Grand   Lodge                    n.  196 

Lange,    Ex  parte                                   730,  738 


Lantis,   In  re 
Lapique,    Ex  parte 
Lascelles  v.    Georgia 

V.  State 
i^avalle   v.   People 
Lv  /ler,    Ex  parte 
Lawrence,    Ex   parte 
Lawton   V.    Commissioners   of   Cambridge 

599 
Leatherwood   v.    Moody 
Leavenworth   Co.   v.    Miller 
Le    Bur,    Ex    parte 
Lees  V.   Childs 

V.  Commissioners 
Legg  V.   Mayor 
Leroy    v.    Cusacke 
Le  Roy  v.  Mayor 
Lessccl    v.    Murray 
Lcv.is    v.    Brainerd 

v.   Whittle 
Lexington    v.    Sargent 
Libby  v.  West  St.  Paul 
Life  &  Fire  Ins.  Co.  v.   .\dams 


n.  600,  n.  601 

n.  848 

n.  837 

n.  837 

n.  437 

n.  848 
103 


623 

271 

819 

539 

554 

n.  2 

427 

599 

88 

211,  n.  214 

n.  633 
n.  640 


100,  IS3,  n.  679 


Life  ifi   Fire   Ins.   Co.   v.    Heirs 
Lin'lcn  v.  Alj.-mic-da  Co.   Supervisors  n. 
Lind8.iy  v.   Lutkctt 
Lindncy  v.  Attorney  General 
LincRar    v.    Rittcnhouse 
Little  v.   State 

LilllrfirM    V.    Newell 

Lifllr    UnrU.    Kx   parte 
LivinKnioTi   v.    DorKcnois 

V.    LivinRston 
Llovrl   V.    .Spurrier 
Locke  v.  Lcxin^^ton 
l>OK.in  V.    Stale 
London  v.   llrddrn 
London   ("ity  v.   V'.inacrc 
Londoner    v.    People 
Long  v.  Ohio  River  R.  Co. 


100 

221 

n.  157 

331.  n-  4'>i 

280 

n.  41^ 

n.  22s 

497 

675 

n.  64-3 

n.  660 

552.  1-  575 

n.  711 

171 

364 

n,  406 

n.  601 


Loomis  v.  Rogers  Township  n.  8 

Lord  v.  Bates  n"22i 

Lord    Admiral    v.    Linstead  462 

Lord   Bruces'   Case  272,   276 

Loring,   Ex  parte  70,  n.  95 

Louisville,  etc.  R.  Co.  v.  State  n.  19 

Low  V.   R.  R.   Co.  547 

v.  Towns  140,     147,    n.     151 

Lowe   V.   Alexander  667 

Lowell   V.    Boston  n.    182 

V.  County    Commissioners  540 

Lower   v.    United    States  43 

Lowther's   Case  n.    401 

Loyd,     In     re  774 

Lucas,  Ex  parte  n.  763 

Luce  V.   Board  of  Examiners  n.    17 

Ludlow  V.  Executors  of  Ludlow  597,  599 

Luis  Oetiza,  In  re  n.  817 
Lusk,  Ex  parte                             n.   iS7,  n.   161 

Lyman  v.    Burlington  n.    590 

Lynch,    Ex    parte  120 
Lynde  v.  Noble                             599,  659,  660 

Lyon   V.    Rice  224 

Lyons     v.     Blenheim  767 

V.   Cooper  851 

v.   Green  n.    550 
Lysaght  v.  St.  Louis,  etc.  Stone  Masons' 

Ass'n  n.  208 


M 

McAleer  v.  County 
McAllilley  v.   Horton 
McAloon  v.  Pawtucket 
McBane   v.    People 
McCall   V.    McDowell 
McCaskill    v.    McCaskill 
McClellan,    Ex   parte 
McConnell  v.   State 
McCoy    V.    State 
McCrary  v.   Griswold 
McCreary  v.  Rhodes 
McCullough,  Ex  parte 
McDonald,  In  re 
McDonnell,    In   re 
McDuffie    V.    Cook 
McElhany   v.    Stewart 
McEntire  v.  Wood 
McGoniha  v.   Guthrie 
McKcan,    Ex   parte 
McKinncy  v.    Baker 
McKissack,  Ex  parte 
McKnight,    Ex    parte 
McLachlan    v.    Gray 
McLeod  V.  Scott 
McNamara  v.  Specs 
McNaughton  v.   Evert 
Mabley    v.    Court 
Macdonald,   In  re 
Mackey,   Ex  parte 
Mackin    v.    Portland    Gas 
Macready   v.    Wilcox 
Maddox  v.   Neal 

V.  York 
Madison  v.  Korbly 
Maguirc,    In    re 
Magrudcr    v.    Governor 

V.    Swnnn 
Mahonc,    Ex   parte 
Man    V.    Liddle 
Manahan  v.  Watts 
Manderson    v.     Hughs 
Mannix   v.    State 
Manns    v.     Givens 


n.  32 

n.  55° 

n.  5S(o 

n.    6 

n.   877 

579 

768 

n.  802 

n.  ? 

12 

n.  633 

n.  693 

,  n.  840 

n.  764 

811 

105, 

n.    106 

442 

n.   6 

492 

830 

12 

n.  75 

n.    838 

12 

n.  239 

647,   664 

n.   579 

32 

n.   817 

n. 

19,    119 

Co. 

n.    i9'8 

n.    778 

n.   10 

n.   288 

n.   161 

n.    764 

131 

126,    140, 

n.    151 

n.    103 

n.    179 

n.  346 

460 

n.    157 

48, 

n.     97 

TABLE  OF   CITED   CASES. 


XXIX 


{References   are   to   Pages.) 


Manufacturing  Co.,  Ex  parte  n.  239 

Manufacturing  Co.  v.  Carroll  492 

Maples  V.   Maples  n.   848 

Marblehead    v.    County    Commissioners    539 
Marbury    v.    Madison 

n.  6,   121,   122,   125,   126,   127,  n.   127, 

131,   143.   146,   153.  505,   598 

Marion    County    v.    Phillips  558 

Markle    v.    Wright  328 

Marmaduke,  Ex  parte  n.  764 

Marriott   v.    Shaw  524 

Marsden   v.    Dale  522 

V.  Wardle  468 

Marshall   v.    Sloan  n.    19 

Martin,    In    re  n.    854 

Martin  v.  Archbishop  of  Canterbury         524 

V.   Cutler 

V.   Francis 

V.  ingham 

V.   Mackonochie 

V.  Mott 

V.  State 

Mary    Eaton,    In    re 

Mason,    Ex   parte 

Mason  V.  School  District 

Mastin   v.    Sloan 

Mathews  v.    State 

Mauch   Chunk   v.    Nesopeck 

Maule,    Ex    parte 

Maulsby,  Ex  parte 

Mauran  v.   Smith 

134,  n.   134,  I 
Maurer   v.    Mitchell 
Max,    Ex   parte 
May  V.  Fuily 
Mayo  V.  Freeland 

V.  James 
Mayor,  etc.  v.  James 
V.  Lord 
V.   Nashville 
V.  Pearl 
V.   Shaw 
Mayor  of  Albany,    Ex   parte 
Mayor    of    London    v.    Cox 

464,    465,    467,    n.    469,    584 
M.   E.   Church,    In  re  n.    1S7 

Mears,  Ex  parte  n.  708 

Memphis  v.  Halsey  n.   507 

Memphis  &  L.  R.  R.  Co.  v.  Commission- 
ers 
Mendon    v.    County    Commissioners 
Mendyke   v.    Stint 
Mercein    v.    People 
Meredith   v.    Supervisors 
Merrick  v.   Arbela 
V.   Board 

V.  Township   Board 
Merritt  v.   Swimley 
Metsker  v.  Nealey 
Metzger,    Ex    parte 
Meyer  v.   Brown 
Middleton    v.    Lowe 
Milburn,   Ex  parte 
Miller  V.    County 
V.   Court 
v.   Iron   Co 
V.  Marshall 
V.  McCuIlough 
V.   Town  of  Palermo 

V.  Trustees  551,    552,    553,    561,    577 

V.   Utter  446,  447 

V.   Wheeler  n.  507 

Millett,  Ex  parte  n.  7S9 


n. 

708 

139 

n. 

151 

n. 

469 

619 

474 

697 

n. 

789 

n. 

225 

455 

n.  410,  h. 

448 

612 

n. 

848 

n. 

789 

40,  148,  n. 

151 

n. 

459 

696 

n 

243 

454 

492, 

533 

504 

n. 

225 

549 

549 

533. 

561 

544, 

646 

323 

ers 

540 

524 

804 

n.  157 

553, 

n.  575 

561 

572 

n.  778 

n.  161 

618 

n.  184 

140 

618, 

n.  706 

46 

49,  53 

482 

492 

668 

n.  406 

Millett   V.    Field  198 

Milligan,  Ex  parte  736 

Milliner's  Adm.  v.  Harrison  n.  8 

Milwaukee  Iron  Co  v.   Schubel  n.  643 

Miners'   Bank  v.  United  States  n.  448 

Mining  Co.   v.   Haygood  120 

Misch  v.   Russell  278 

Missouri  v.  Bell  Tel.  Co  n.   198 

V.   Murphy  n.   19 

Mitchell,  Ex  parte  n.  764 

V.  Boardman  n.  68 

V.   Tolan  446,  447,  448 

Mobile,   etc.,   R.   Co.  v.   Wisdom  189 

Moffit  V.   Brainard 
Moufet  V.   Washburn 
Montgomery  v.  State 
Moody  v.  Fleming 
Mooney,  Ex  parte 
Moore  v.   Christian 

v.   Hoisington 

v.   Superior  Ct. 

V.  Turner 

v.  Wheeler 
iNIorgan,    Ex    parte 
Morgan  Smith,   Ex  parte 
Morles  v.   Watson 
Morris,  Ex  parte 

V.    Womble 


469 

n.  331,  n.  441 

n.  4 

n.  693 

n.   778 

328 

521 

589 

n.   763 

830 

522 

n.    157 

n.  87,  153,  n.  848 

n.   221 


Morris  Canal  &  Banking  Co.  v.  State       643 
Morrison,    In    re  n.    408 

Morse  v.   Specs  6^7 

Moses  v.  Kearney  n.  221 

Moss  v.   Patterson  n.  448 

Moulton  v.   Reid  327 

Mt  Moriah  Cemetery  Ass'n  v.   Common- 

wealth  n.    198 

Mt.  Morris  Square,  In  re  551,  565,  601,  644 
Mowry,   In  re  n.  854,  n.  870 

Mulhkin  V.  City  of  Bloomington  n.  309 

Mumma  v.   Potomac  Co.  362 

Munkers  v.  Watson  n.   103 

Murphy    v.    Farmers'    Bank 
,.  ^  331,  n.  401,  403,  408,  413 

Murray  v.  Stevens  n.  217 

V.  Supervisors  630 

Myers  v.  Pownal  q.  673 


N 

N.  A.  Dev.  Co.  v.  Orman 

National  Bank  v.  Elmira  n. 

National    Docks    R.    Co.    v.    Central    R 

Co. 
Neely  v.  Wadkins 
Neill,    In   re 
Nelson  v.  Edwards 
V.   St.   Martin 

Nevada,  etc.  R.  Co.   ..  „.., ^^^,, 

New  Brunswick,   etc.,   R.   Co.   In  re 

New  Haven,  etc.,  Co.  v.  State 

News   Co.    V.   Harris 

Newton  v.   Achison 

N.    Y.   Central,   etc.,   R.   Co.   v.   People 

Nicholss  V.   State 

Noble,    Ex  parte  „ 

Noble  V.  Superior  Court  p 

Norris    v.    Newton 

Northern   Pac     R.   Co.   v.   Wash    Ter 


n.    854,    n. 


District  Court  n. 


'683 
579 

352 
276 
870 
164 
184 
584 
192 
.  10 
633 
850 
192 
612 
8S4 
579 
740 


203,    n.    221 


Norwalk,    etc..  Light    Co.    v.    Common 

Council  ^ 

Nye,   Ex  parte  844,  n! 

Nye  V.  Rose  „ 


225 
848 
175 


TABLE  OF   CITED   CASES. 


{References   are  to   Pages.) 


Oatman   v.    Bond  78 

O'Brien,  Ex  parte  n.  760,  763 

Ohio,  etc.,  R.  Co.  v.  People  n.  198 

O.  &  V.  R.  Co.  V.  Plumas  Co.                   n.  4 

Olcott  V.   Supervisors  190 

Olden,  Ex  parte  n.  764 

O'Leary,   Ex  parte  n.   763 

Oliver,   In   re  n.   877 

O'Malia  v.  Wentworth  n.  72S 

O'Neal,  Ex  parte  n.  706 

Oran    Highway    Com'rs   v.  Hoblit        n.    584 

Ornelas  v.  Rinz  n.  817 
Oroville,  etc.,  R.  Co.  v.  County  42,  n.  44 
Orr  v.    Board   of   education          562,   n.   633 

Osborn,  Ex  parte  496 

Osborn  v.   People  553 

Osborne  v.  Lindow  n.   10 

v.   Prather  n.    92 

Osgood  v.  Jones  n.  284 

Otey  v.    Rogers  n.   640 

Ottawa  V.    People  n.    4,    118,    202 

Overbeck   v.    Galloway  5  58 

Overholt  v.  Vieths  603 

Overseers  v.   Overseers  n.   601 

Overseers,   etc.,   v.    Sutton  n.   657 

Owen  V.  Whitaker  n.  383 

Owens   V.    State  647 


Pacific  R.  Co.  V.  Governor 

131 

Pacific,  etc.,  R.  Co.  v.  Superior  Court  n. 

497 

Page   V.    Hardin 

153 

Paine,   Ex  parte                                            n. 

208 

Palmer  v.  Foley                           n.  332,  n. 

346 

Palmer,   et   al.    v.    Forsythe,    et    al. 

653 

Palms  V.   Campan 

660 

Parish  of  Bellport  v.  Tooker                  n. 

352 

Parker,   Ex  parte                                            ri 

•   97 

Parker,   in  re                                        "•   840, 

841 

Parker   v.    Gilreath 

623 

Parks,   Ex  parte 

730 

Parks  V.  Mayor,  etc.,  of  Boston       560, 

561 

v.   State                                                      n- 

280 

Partington,    Ex   parte 

805 

Pate,    Ex   parte                                             "• 

854 

Patterson  v.  Hubbs 

327 

V.  State                                                  n- 

S54 

Pearce,   Ex  parte                          n.   590.   "• 

706 

Pearson,    In   re                                             "■ 

840 

Pearson  v.   Rawlings 

846 

Pease   v.    Chicago 

552 

Peck  V.  Booth 

n.  8 

V.  Foote                              650,  n.   653, 

6O5 

PcHrorcna,    In  re                                          "• 

550 

Penobscot   R.    R.    Co.    v.   Weeks 

517 

People  V.  A.  &  V.  R.  Co.                    192, 

193 

V.   Albany,   etc.,   Co.                              n- 

383 

V.   Albany    Hospital                                 " 

•   45 

V.   Albany,  etc.,  R.  Co.                        n- 

437 

V.    Anderson,    etc.,    R.    Co.                 n. 

3  59 

V.  Atlantic   Ave.    R.   Co.                   "• 

376 

V.  Atforniy    General 

414 

V.   B.nnk 

286 

V.    Bank    of    Hudson 

317 

V.    n.irllrlt                                                     n 

•    32 

V.   B/|ts                             n.   550,  n.  575 

648 

v.    I'.ird                                                280,  n 

280 

».    Bissrll                                              134. 

140 

V.    Board 

9 

V.    Hoard  of   AssoHsors     n.    sO'.   '>'". 

648 

Peoijle    V.    Board    of    Commissioners   of 

New   York  _  561,    565 

V.  Board  of  Education  173 

V.  Board  of  Health,   etc.,  560,    565 

V.  Board   of  Police  n.   4 

V.  Board  of   Supervisors  of   Living- 
ston Co.  561,   566 

V.  Board    of    Supervisors    of    Queen 

Co.  561 

V.  Bowe  797 

V.  Boyd  n.  288,  n.  300 

V.  Bradley  n.   725 

V.  Brady  740,   821,   822,   826 

V.  Brennan  107,   no 

V.  Bristol    Co.  299 

V.  Bristol,  etc.,  Tpk.  Co.  n.  253 

V.  Brooklyn  210,    n.    6oi 

V.  Brooklyn   Commissioners 

V.  Buch 

V.  Callaghan 

V.  Carpenter 

V.  Cassels 

V.  Chapin 

V.  Clieetham 

V.  Chicago,   etc.,   Co. 

V.  Chicago  B'd  of  Trade 

V.  Circuit  Court 

V.  City    Bank 

V.  Citv  of  N.   Y 


584 

564 

n.  332,  408 

n.  322,  427 

n.  789 

n.  65,  n.  68 

n.  640 

n.  368 

n.  208 

n.  459,  n.  497,  n.  507 

n.  376 

n.  179 


V.   City  of  Peoria  n.  323,  n.  419 

V.   City    of    Riverside  n.    415,    416 

V.   Clark  317,  341,  n.  352,  n.  415,  n.  437 
V.   Clayton  427 

V.   Clerk  396 

V.   Clerk    of    Dist.    Ct.,    etc.,  n.    79 

V.    Clute  n.   448 

V.  Colborne  n.  5 

V.   College  373 

V.   Collins  189,    191 

V.  Colorado,  etc.,   R.  Co.  n.  414 

V.   Commissioners  583,   n.    591,   648 

V.   Commissioners  of  Excise  of  Clav- 

ernack  562 

V.   Commissioners  of   Salem  191 

V.    Common  Council  of  Brooklyn  n.    189 
V.   Common  Council  of  N.  Y.  n.   175 

V.   Commonwealth,   etc.,  n.   673 

V.   Corporation   of   N.   Y.  n.    17,    156 

V.  County   Judges,    etc.,  n.    550,    660 

V.   Ct.    of   Sessions  n.    95 

V.    Cowles  n.   848 

V.   Crawford 
V.   Cullom 
V.   Curtis 

V.    Del.    Conmion    Pleas 
V.   Dewey 

V.   Dispensary,    etc.,    Soc 
V.  District  Court 

n.    461,    n.    484. 
V.   Donohue 
V.   Drain   Com'rs 
V.   Draper 
V.   Easton 
V.    I'.dmunds 
V.    Eric    R.    Co. 
V.  Evey 
V.   I'^arcliild 
V.   I'^arnham 
V.   l-'erguson 

V.   Fishkill,    etc..    R.    Co. 
V.   Flint 
V.   l'"ostcr 
V.  Galcsburg 
V.   Gartland 


n.  440,  n. 

441 

1.    134,    n. 

151 

n. 

401 

229 

n. 

727 

n. 

376 

n.    50J,    n. 

513 

"n.   584. 

740 

n. 

590 

n.   322, 

327 

n.  8 

178 

193.    "• 

352 

n. 

280 

414 

n. 

315 

34» 

l'93 

428 

n 

679 

330 

n.   310,  n. 

332 

TABLE  OF   CITED   CASES. 


XXXI 


{References  are   to   Pages.) 


People  V.   Gaul  n.    778,   n.   877 

V.  German,    etc.,    Church  n.    208 

V.   Getzendaner  n.    184 

V.   Gibbons  n.    92 

T.  Gillespie  n.  264 

V.  Golden  Rule  n.  359,  n.  448 

V.  Goss  Manufacturing  Co.  n.   217 

V.  Governor  140,    147,   n.    151 

V.  Granrd   Co.    Coin'rs  n.    310 

V.  Green  n.   106,  n.  175,  n.  264 

V.  Hall  278,  279,  280,  412 

V.  Halsey  189 

V.  Harris  n.  243 

V.   Hartwell  n.  300 

V.  Hatch  n.  4,   140 

V.   Hatden  561 

V.   Heaton  275 

V.  Heffernan  n.  870 

V.   Highway   Com'rs  n.    10,   646,    647 

V.  Hill  583,  n.  590,  n.  601,  n.  653,  667 
V.   Hills  n.   391 

V.   Hillsdale,     etc.,     Turnpike     Co. 

276,     299,     376 
V.  Hoffman  n.   575 

V.  Holcorab  n.    332 

V.   Holden  280,  n.   280,   331 

V.   Holtz  419 

V.  Hospital  n.  151 

V.   Hoyt  n.  8 

V.    Improvement  Co.  n.   376 

V.   Inman  n.    498 

V.   Insurance  Co.  24,   331 

V.  Jackson  573 

V.  Jacobs  692,  n.  789 

V.    lonas  n.  764 

V.  Judges  24,   n.    92,    99 

V.  Judge  of  Duchess  Co.  515 

V.   Judge   Wayne  Co.,   etc.  n.   498 

V.  Judges  of   Westchester  230 

V.   Kankakee  River,  etc.,   Co.  n.   376 

V.   Keeling  n.  260,   n.  300 

V.  Kelly  692,    n.    706 

V.   Kingston,   etc.,   Co.  n.   352 

V.   Knickerbocker  n.   74 

V.   La  Coste  443,   n.   444 

V.  Londoner  279,  280,  n.  346,  n.  410 
V.  Louisville,  etc.,  R.  Co.  n.  198,  203 
V.   Lowden  427 

v.  McCullom  140 

V.  McDonald  n.   657 

V.   Mclntyre  n.    438 

V.   McLane  n.    75 

V.   McRoberts  n.    95.    96 

V.   Mallary  n.   764 

V.  Manhattan  Gas  Light  Co.  n.  198 
V.    Martin  561 

V.   Masonic   Ass'n  n.   8 

V.  Mayer  n.    725 

V.  Maynard 

282,   n.   288,   314.   n.   31s,   .•?6n 
V.   Mayor,  etc.,  n.  359,   583,   648 

V.  Mayor,  etc.,  of  New  York 

561,    586,    n.    629,    n.    OAT. 
V.  Mayworm  431 

V.   Medical  Society  n.  208,  n.  575 

V.  Mercein  765,    767,    n.    778,    n.    840 

V.  Miller  n.   410 

V.   Mississippi,    etc.,    R.    Co.  n.    437 

V.  Monroe  Oyer  and  Terminer  n.  32 
V.   Morgan  n.    629,    n.    633 

V.   Morton  n.    114,   n.    134 

V.    Murphy  n.    706 

V.  Mutual,  etc.,  Co.  n.  271 

V.   Myers  564 


People   V.    Nevada 
V.  Newberry 
V.   Newton 
V.   New    York 
V    New   York  Asylum 


427 
553 
n.    lo 
159 
n.    157 

V.  N.   Y.,   etc.,   R.   Co.              n.    198,   203 

V.  N.    Y.    Central,   etc.,    R.    Co.            210 

V.  Niagara  Bank                                       349 

V.  Nichols                                         498,    561 

V.  Northern  R.  Co.                               n.  437 

V.  Northern  Pac.   R.   R.   Co.            n.  214 

V.  North    River,    etc.,    Co.                  n.    368 

V.  Norton                                                   n.    97 

V.  Oakland  Board  of  Education  564,  565 

V.  Ohio  Grove                                        n.   243 

V.  Oneida  Common  Pleas                     n.  84 

v.  Parker                                                        427 

v.  Peabody                                                     650 

V.  Percells                                               n.    440 

v.  Perfinbrink                                         n.    789 

v.  Perley                                                  n.    444 

V.  Perry                                                   n.   601 

v.  Pfister                                                        426 

V.  Phillips                                                      441 

v.  Pillow                                                  n.    840 

V.  Pratt                                                        n.    410 

V.  Pullman                                               n.    288 

V.  Railroad    Co.             360,    361,    416,    424 

V.  Ravenwood,   etc.,   Co.                     n.   429 

V.  Rawson                                                n.    760 

v.  Reclamation  Dist.                             n.  323 

v.  Reddy                                              648,    653 

v.  Rensselaer                                          n.  640 

V.  Rensselaer,    etc.,    R.    Co.               n.    429 

v.  Richardsoiv 

341,    378,    396,    416,    422,    427.    n.    448 

v.  Ridgeley                         325,    331,    n.    438 

V.  River  Raisin,  etc.,  R.   Co.  431,   n.   438 

v.  Riverside                                                   427 

V.  Rome,   etc.,    R.    Co.                   203,    210 

V.  Romero                                                        42 

V.  Sar.    &•    Rens.    R.    R.    Co.                    421 

V.  Scannel!                                               n.    332 

V.  Scheilleim                                           n.    157 

V.  Schnepp                                                 n.    288 

V.  Seaman                                                      341 

V.  Sexton                                                  n.  679 

V.  Sheriff                                                    n.    7S9 

V.  Stanford                             n.    288,    n.    352 

V.  .'^tate    Ins.    Co.                                        583 

V.  Stevens                                                         17 

V.  Stilwell                                            586,    601 

v.  Straight                                               n.    157 

V.  Suburban  R.  R.  Co.                       n.  196 

v.  .Supervisors  66,   118,  n.   175,  416. 

483,   n.   484,   n.   633,   648,   640,    667 

V.  .Supervisors    of    Allegheny                 586 

V.  Supervisors    Barnett    Tp.                    171 

V.  Supervisors   of   Livingston    Co.        560 

V.  Supervisors  of  Queens         568,  n.  653 

v.  Supervisors      of      St.      Lawrence 

County  565 

V.  -Supervisors  of   San   Francisco   n.    189 

V.  Supervisors  of  Sullivan  County  n.  239 

V.  .Supervisors  of  Westchester          n.   65 

V.  Sweeting                            n.    300.    n.    332 

V.  Syracuse                                                n.   40 

V.  Taylor                                              107,    108 

V.  Thayer                                                       567 

V.  Thompson                         ,  n.  280,  n.  440 

V.  Tinder                                                        797 

V.  Tobacco  Company                                 414 

V.  Trustees                               n.    352.    n.    590 

V.  Trustees    of    Geneva    College           413 


TATILE  OF   CITED   CASES. 


{References   are   to  Pages.) 


People  V.  Turnpike  Co.  193.  3 16,   317 

V.  Utica    Ins.    Co.      259,    263,    331,    397. 
398,    412,   n.    441 

V.   Vail 

V.  Van  A 1  style 

V.    Van   Slick 

V.   Van   Slike 

V.  Van    Slyck 

V.  Verniilyea 

V.  Waite 

V.  Walker 

V.  Walter 

V.  Warden,    etc., 

V.  Warfield 

V.  Wayne  Co.   Cir.   Ct. 

V.   Weber 

V.  Wendell 

V.  Whipple 

V.  Whitcomb 

V.  Whitney 

V.  Whitson 

V.  Wiant 

V.  Wilkinson 

V.  Willett 

V.   Winston 

V.   Woodman 

V.   Works 

V.  Yates 

V.  York 
People,    ex    rel. 
People  ex  rel.  v 

V.    Baker 

V.  Board   of   Fire    Commissioners 

V.  Coles 

V.   Delaney 

V.   Dunkirk 

V.  Head 

V.   Liscomb 

V.  McLean 
Peckett  V.  White 
Peck  V.   Foot 
Perdue,    Ex   parte 
Perkins   v.    Holman 
Peru  V.   Bearss 
Perry,    Ex    parte 

T.   Reynolds 
Petaluma   Savings  Bank   v.    Court  . 
Peters  v.  Bell 

V.   Peters 
Pettigrew  v.  Washington  Co. 
I'fistcr  V.  Bd.  of  Commissioners 
Philips  V.  Commonwealth 
Philllips    V.    Thralls 
Phoenix    Iron   Co.   v.    Commonwealth        212 
Pickell  V.  Owen  "•  84 

I'lckitt,    Ex   parte  n-    iSL    '53 

Pickford    v.    Mayor    &    Aldcrnun    of 

Lynn 
I'irrce    V.    Emery 
Pike  V.   Middleton 
I'ikulik,    In   re 

PiiiKrre  v.  (bounty  Commissioners 
I'inkticy   v.    Ayres 
Place   V.    People 

Plantrrn   Compress   Ass'n   v.    llanes  „-, 

Plantrrn'   Ins.  Co.  v.  Cramer  n.  459,  n.   507 
Plall  V.  llarriBon  697,  n.  706,  n.  764 

Plymouth    v.   County   Commissioners  541 

V.    Plymouth   f  ntiimissioners  646 

Ponicroy  v.    I.appens  700 

Pond    V.    Mrdway  540 

Poor  V.   Smith  61  a 

Popr    V.    \'aux    ft    Wife  67s 

Portrr  V.   I<o(  hcHtrr  524 


341 

n.  673 

400 

396 

296 

611 

408,   n.   448 

213 

561,  565.   566 

n.    706 

n.   25,    33 

n.   476 

n.   4 

n.  225 

n.    175 

272,   325,    n.    326,    361 

476 

n.  760 

n.   25,   33,   328 

SSI 

n.  714,  n.  840 

n.    870 

n.    103 

n.    484,    513,    n.    513 

140 

n.    114 

192,    266,    268 

-  768 

692 

601 

716 

648 

648 

S83 

692 

649 

n.  121 

S68 

n.   706 

n.    620 

326 

70 

1 1 1 

11.    95 

n.   332 

n.   57S 

n.  87 

n.    175 

n.  301 

664 


32s.  n 


539 
3 '3 
176 

n.    764 

543 

u.    (170 

"■    332 

327 


Porter  v.   Rumery 

Potts  V.  Tuttle 

Potwin  Place  v.   Topeka  R.   Co. 

Poultney,  Ex  parte 

Powell  V.  Hichner 

V.   Wilson 
Prall  V.   Waldron 
Pray,   In  re 
Prescott  V.  Gouser 

V.   Hays 
Preston,   In  re 
Price  V.   County 

V.   Harned 

V.   Irrigating  Co. 
Fringe   v.    Child 
Prosecuting  Attorney  v.  Judges 

corder's  Court 
Prouty   V.   Stover 
Pulver  V.   Grooves 
Putnam  v.  Langley 


Q 


Queen  v.  Derby 

V.   Eastern    Countries    Railway 

V.   Great  Western   R.   Co. 

V.   Herford 

V.    Hungerford 

V.  Kendal 

V.  Lancashire,    etc.,    R.    Co. 

V.   Pitt 

V.  York,  etc.,  R.  Co. 
Quimbo  Appo.  v.  People 

R 

RadI,    In    re 

Railroad  Company,  Ex  parte 

V.   Barnes 

V.   Brannum 

V.   Christian 

V.   Fell 

V.   Fink 

V.    McCoy 

V.   Railroad   Co. 

V.   Superior   Court 

V.   Whipple 

V.  Young 
Ransom  v.   Cummings 
Ralls.  Co.  Ct.  V.  United  States 
Randolph,    Ex  parte 
Randon,   Ex  parte 
Ray,    ICx  parte 
Ray  V.   Parsons 
Reading  v.   Commonwealth 
Rector    v.    Price 
Redd,    Ex   i)arte 
Reddish,   In  re 
Kecbe  v.   Robinson 
Reed,   Ex   parte 
Reed  v.   Cumberland,  etc.,  Co. 

V.   Curry 
Rees  v.   Lawlcr 
Reese  v.   Lawless 
Reeves  v.  Reeves 
Regents,   etc.,   v.   Williams 
Reggcl,    l"Ix    parte 
Reg.  v.   All   Saints 

V.   Anderson 
V.    Archdnll 

V.   B.'iines 

V.   Councillors  of  Derby 
V.   Iliorns 

V.    Laml)ourn  N'alley   R.   R.   ' 
V.   Morton 


629 


n 

•  19 

200 

n. 

103 

n. 

640 

22^ 

668 

n. 

778 

n 

•  6s 

329 

768. 

77S 

4« 

n. 

221 

n. 

198 

524 

of  Re- 

S72 

139. 

144 

S29 

n. 

is; 

n. 

1 57 

y 

62 

63 

461 

168 

61 

63 

n 

■  25 

63 

498 

475 

69,  n. 

507 

562 

583 

s8o. 

S8i 

55' 

216 

644 

56 

520 

547. 

S5« 

650 

n. 

579 

n. 

184 

805 

797 

n. 

498 

n. 

579 

n. 

189 

557 

n.  74 

n. 

106 

327 

n. 

789 

n. 

352 

n 

60s 

507 

483 

n 

778 

554 

830 

n.  10 

n 

2ffS 

n 

390 

158 

n.  17 

404 

"0.   n 

217 

n 

280 

TABLS  OF   CITED  CASES. 


XXXUl 


(.References  are  to  Pages.) 


Reg.  V.  Pepper  n.  390 

V.  Roberts  n.  864 

Reichenback  v.   Kuddach  n.   92 

Reid,  Ex  parte  n.  459 

Rtinitz,   In  re  n.   739 

Ren.  V.  Gordon  691 

Renshaw,    Ex   parte  n.   ybo 

Renwick  v.   Hall  553 

Republica   v.    Arnold  7U4 

V.   Wray  n.  332 

Rex  V.  Amery  n.  415,  421 

V.  Attwood  385,    38^ 

V.    Badcock  252 

V.  Bank  of  England  n.  217 

V.  Barker 

n.    18,    19,  24,   60,    159,    177,   67s 

V.   Bedford  159 

V.  Bedford  Cor.  168 
V.   Beedle                                    252,  383,  385 

V.   Bingham  251 

V.   Bishop  of  Ely  525 

V.   Blanchard  251 

V.   Blooer  n.   i 

V.    Blythe  294 

V.  Boultbec  752 

V.   Breton  384 

V.   Bridge  404 

V.   Bum  stead                 ,  384 

V.   Burder  i6{> 

V.   Buxton  177 

V.   Cambridge  24 

V.  Cann  377 

V.  Canterbury  160 

V.   Carmathen  413 

V.  Cary  239 

V.  Chancellor  159 
V.    Chester                                   160,  309,  422 

V.  City  of   Chester  421 

V.  City  of  London  422 

V.  Clapham  598 

V.  Clark  n.  854 
V.  Clarke                                         309,  n.  870 

V.   Clerk  n.  870 

V.   College  27 

V.   College   of   Physicians  230 

V.  Commissioners  of  Excise  160 

V.   Corporation   of   Bedford  253 

V.   Corporation    of    Dublin  230 

V.   Cowle  5 10 

V.  Darley  387 

V.  Davis  752 
V.  Dawbeny  251,  377,  385 
V.  Dawes                                   291,  384,  704 

V.   Dean  "lO 

V.   Delavel  773,  774 

V.   De   Mandeville  772 

V.  De  Manneville  n.  778 
V.  Duke  of  Bedford               252,  385,  38^ 

V.   Earl    Ferrers  857 

V.   Field  150 

V.   Francis  398 

V.   Godwin  405 

V.   Goudgc  251 

V.  Gower  167 
V.  Greenhill  773,  775,  n.  778 
V.   Gregory                                  250,   384,   385 

V.  Grosvenor  169 

V.  Hall  251 
V.  Hanley                                  252,   383,   38? 

V.   Harmer,    et    al.  638 

V.  Harris  611 

V.  Harwood  294 

V.   Hawkins  403 

V.   His'hmore  251,    38t- 

V.   Hopkins  774 


Rex  V.  Howell  386 
V.  Hulston  251 
V.  Inhabitants,  etc.,  638 
V.  Inhabitants  of  Glamorgan  598 
V.  Inhabitants  of  Norwich  611 
V.  Johnson  768,  773,  774 
V.  Jones  168,  857 
V.  Juda  791 
V.  Jukes  612 
V.  Justices  of  Herefordshire  253 
V.  Justices  of  Yorkshire  676 
V.  Kessel  704 
V.  King,  et  al.  636 
V.  Larwood  168,  171 
V.  Lewis  290 
V.  Ley  land  169 
V.  Lister  n.  840 
V.  Lone  168 
V.  Loudon  159,  n.  161 
V.  McKay  385 
V.  Manning  636 
V.  Marks  836 
V.  Marsden  298,  354,  384,  397,  412,  446 
V.  Mashiter  293 
V.  Master  S:  Fellows  of  St.  Cath- 
erine's Hall  383,  ^85 
V.  Mayor  169,  309 
V.  Mayor  of  Hertford  250 
V.  Moreley  61  ? 
V.  Munday  405 
V.  Newcastle,  etc.,  n.  214 
V.  Newcastle-upon-Tyne  211 
V.  Nicholson  252,  379 
V.  North  652 
V.  Ogden  266,  383,  385,  386 
V.  Orde  n.  448 
V.  Parry  n.  300,  384,  402,  405,  n.  411 
V.  Pasmore  554 
V.  Phippen  n.  17 
V.  Plowright  599 
V.  Ponsonby  389 
V.  Ramsden  252,  383,  385 
V.  Reynell  377 
V.  St.  Catherine's  Dock  177 
V.  Sanford  293 
V.  Sargeant  402 
V.  Saunders  n.  322 
V.  Sergeant  294,  384 
V.  Severn,  etc.,  R.  Co.  26,  192,  203 
V.  Shelley  211 
V.  Shepherd  251,  384 
V.  Shreiner  781 
V.  Sir  Williams  Lowther  377 
V.  Smith  773,  774 
V.  Stacey  251,  291 
V.  Stanton  ^  355 
V.  Surgeon's  Co.  159 
V.  Tindal  752 
V.  Trelawney  n.  300,  384 
V.  Trevenen  251 
V.  Turlington.  ri.  870 
V.  Tyrrill  309 
V.  University  167 
V.  Wells  367 
V.  Wardroper  286,  291,  384,  402 
V.  Wells  367 
V.  White  386 
V.  Whitwell  169,  389 
V.  Williams  250,  n.  391,  413 
V.  Windham  24 
V.  Winton  n.  864,  870 
V.  Wright  n.  870 
V.   York  159 

Reynolds,  In  re  n.  727 

V.   Baldwin  n.   359 


XXXIV 


TABLE   OF   CITED   CASES. 


(.References   are   to   Pages.) 


Reynolds,   In   re   v.    Crook  n.   4° 

V.  West  Hoboken  "•    579 

Rhodes  v.   Driver  "■   33^ 

Rice,    In  re  "•  476 

Rice  V.  Austin  140,   n.    151 

V.   Board  n-   68 

V.   B'd  of  Canvassers  n.   40 

V.   National   Bank  n.   401 

Richard  v.   Campbell   &  Houck  479 

iMchards   v.   Collins  n.    77S 

V.   Hammer  447 

V.  Pattison  211 

V.   Smith  n.    196 

V.   Swift  n.    214 

Richland   Co.  v.   Miller  120 

kichman  v.  Adams  n.  414 

V.   Muscatine   Co.  n.    640 

Richmond,    etc.,    R.    Co.    v.  Brown             203 

Rickclt,  Ex  parte  n.  730 

Rickey  v.  Superior  Court  n.  461 

Ringleberg  v.   Peterson  n.   670 

Rivers  v     Mitchell  n.   870 

Roanoke,   Ex  parte  n.   575 

Robb,   In  re  75°,  830 

Robb  v.  Connolly            734,  736,   830,   n.  832 

V.   McDonald  n.  789 

Koberson   v.   Bayonne  n.    600 

Robert  v.    Humby  468 

Roberts,  In  re  826 

Roberts   v.    Commissioners  646,    667 

V.   Reilly  826,    830,    831,    n.    832 

v.   Smith  n.    3- 

Robertson   v.    Lambertville  6tii 

v.   State  n.  262 

Robinson  v.  Board,   etc.,  .            559 

V.   Board,   etc.,   of   Sacramento  500 

v.   Flanders  821,   822 

V.    Supervisors  552,   553,   561 

V.   Supervisors  of   Sacramento  558 

Roche  V.    Bruggemann  446,   447 

Rockwell  V.  Bowers  12 

Rodman  v.   Austin  n.  657 

Kiclilcr  V.  Aid  Society  n.  208 

Kohmcisttr  v.  Bannon  n.  84 

Rollins,  Kx  parte  n.  763 

Kopcr  V.   Cady  n.   498 

Roscnbaum    v.     Board    of  Supervisors 

n.    5,   n.   6 

Rosenberg,  In  re  n.  789 

Kosenthall  v.   State  Board,  etc.,                n.   8 

Koss     In   re  n.   840    ' 

Kov.ill,    Ex  parte  732 

l<<i>-tir,  Ex  parte  r>.  848 

Kuildk's   Case   v.    Ben  766 

Kuihvcn,  Ex  parte  697 
Rutland    v.    County    Commissioners 

539.   540,   541.  586,   n.    590,   667 

V.  Worcester  n-  663 

Kyan,  Ex  parte  802 

S 

S.1111,   Ex  parlc  n.   789 

Samin  v.  Kinn  1 14 

SamurU  V.   Commissioners  553 

San  Antoiiia  H.  U.  Co.  v.  Texas  203 

San  Anl(fiii;i  St.   H.  Co.  v.  State  n.   196.,  200 

SanlKirn  v.   Dccrficld  176 
San  Jo,nf|iiin  (!ounty  v.  Superior  (!ourt  ii.  79 

Saunrlcru  v.  C.ntlinK  n.  401 

Savage  V.   .Strrbrrn  n.    225 

Savior    V.     Prnnsylvaiiia    Canal    Co  203 

SclicntI   V.    Socirty  5 

School    Iniit>cctori,   etc.,   v.  J'coplr             n.    4 


Schroder  v.   Crary  n.   670 

Schuchman  v.  Commissioners  n.   584 

Scollay  v.    Dunn  460 

Scott  V.   Beatty  n.   670 

V.   Clark  n.   401 

Searle  v.   Williams  461 

Sears  v.   Dessar  n.   864 

Seay  v.    Hunt  n.   280 

Secombe   v.    Kittleson  140 

Secretary  v.  McGarrahan  n.   127 

Security   Co.    v.    Flyer  46 

Seidler  v.   Chosen  Freeholders  643 

Selby   v.   York  525 

Seybold,    Ex    parte  730 

.Seymour    v.    Ely  no 

Shafer   v.    hogue  n.    672 

Shandies,   Ex  parte  n.   32 

Sharon  v.  Sharon  n.  605 

Shattuck  v.   State  n.  864 

Shaw   v.    Smith  n.   864 

Sheehy  v.    Holmes  n.    507 

Sheeley   v.    Wiggs  482 

Sheridan  v.   Colvin  327 

Sherman    v.    Clark  328 

i>nerry  v.   O'Brien  n.    550 

Shine  v.   Kentucky,  etc.,   R.   Co.  n.  8 

Shipley  v.   Mechanics  Bank  n.   217 

Shirley   v.    Lunenberg  629 

Shofford  V.    Railroad  583 

Shuttleworth,    In  re  841 

Siebold,    Ex  parte              734,   n.  739,   n.   763 

Sifford,   Ex  parte  n.   870 

Sikes  V.  Ransom  92 
Simmons  v.  Georgia,  etc.,  Co.  n.  840,  n.  848 
Singer  Mfg.   Co.   v.   Spratt 

n.  461,   n.   463 

Singleton  v.    Commissioners  n.    161 

Sir   Tames   Smith's  Case  309 

Sir    William    Lowther's    Case  331 

Sir  W.  Juxon  v.   Lord  Byron  501 

Slater,    Ex   parte  763 

Smith's  Case  n.   448 

Smith,  Ex  parte  n.   103,  n.  463,  476, 
n.   476,  483,   763,   n.   764,   823, 

830,   n.  832,   n     870 

Smith  V.   Hess  n.   85/1 

v.  Jackson  n.   6 

v.   Mayor  1 10 

V.   Mayor  of  London  524 

v.   Moore  n.  103 

V.   Powell  561 

V.    Reilly  n.    87 

V.    State  n.    352 

V.   Whitney  n.   469,   n.   484,   497 

V.   Yoran  632 

Smithee   v.    Mostly  it    24 

Snell,  In  re  n.  730 

•Snyder,    In   re  844,    n.    848 

Southwick  V.   Postmaster  General  574 

Sowle  V.   Cosner  n.  605 

Speed  V.  Common  Council  n.  114 

Speed   V.    Detroit  n.    459 

Spelling,    ex    rcl.  299 

Spencer   v.    Hloom  n.    550 

Spiritual  Society  v.   Randolph  n.  32 

Spooner  v.   Seattle  564 

.Spraggins  v.   Humphries  100 

Spring  V.  Dahlniaii  n.  711 

Springfuld   v.  Commissioners  158 

Spring   Valley,   etc.,   Co.  v.   Bartlett     n.   484 

V.    San     I'Vaiicisro  n.    4S9 

Spring    Valley    W.    W.    v.    Schottler  323 

Spring   Valley   Water   Works   v.    Bryant 

56s 


TAIJLE   OF   CITED   CASES. 


XXXV 


{References   are   to   Pages.) 


St.   David  v.   Lucv  463 

St.    Joe    &    Denver   City    R.    Co.    v. 

Buchannan     County  558 

St.    Louis   V.    Waterloo-Carondelet    '1'.    & 

F.    Co.  480 

-St.  Louis,  etc.,  Co.  v.  City  452 

St.  Louis  Co.  Court  v.  Sparks     156,  n.   161 
-St.    Louis,    etc.,    R.    Co.    v.    Wear 

n.    479,    n.    498,    n.    da 
Stacey,   In  re  864 

Stackpole    v.    Seymour  n.    217 

Stacy,   In   re  n.    870 

Stange,   Ex  parte  797 

Stanley,   Ex  parte  795 

Starnes   v.    Tanner  n.    75 

Starr  v.   Rochester  566 

State,    Ex   parte  n     760 

•State   V.    Allen      n.    87,    271,    272,    275, 

299,    483.    n-    497.    n.    498,    526 
V.  Aloe  n.    497,    583 

V.  Amer.   Med.   Col.  n.   352 

V.   Ames  n.    179 

V.   Aucoin  n.   802 

V.   Anderson     139,  n.  260,  n.  437,  n.  438 
V.   Archibald  n.   32 

V.  Ashley     260.  n.   262,   264,   n.   383,  441 
V.   Associated    Press  n.    10 

V.  Associates  of  Jersey  Co.  44S 

V.  Atchison,  etc.,   R.   Co. 

n     359.    n.    376,    n.    429 


Bailey 
n.    45,   n.    157,   n.    28 
Baker 


n.  376,  n.  -'■jS 
n.  280,  299 
416 
139 
n.  376,  n.  448 
n.  40 


V.  Bank 
V.   Barker 
V.   Barron 
V.   Bates 

V.   Beardsley  n.  441 

V.   Beecher  441 

V.   Beloit  n.    184 

V.   Benton  n.    507 

V.   Berg  n.    157 

V.    Bergenthal  213 

V.    Bienville    Oil    Works    Co.  212 

V.   Blasdell  n.    151 

V.   Blauvelt  n.    590 

V.    Bloom  n.    69"; 

v.  Boal  n.  438 
V.  Board,  etc.,  9,  139,  n.  243,  n.  323 
V.  Board   of   Aldermen  of   City   of 

Newport  561 

V.   Board  01   Education  n.   310 

V.   Board   of  Health  n.   32 

V.  State  V.  Bobbitt  622 
V.   Born 

V.   Bowen  153,    345 

V.    Bowerman  n.  476 

V.  Boyd  n.  34s 
V.   Bradford                   n.   410,   416,   n.   448 

V.  Brewster  836 
V.   Brown        n.   225,   286,  n.   300- 

n.    331,    n-    345.    n.    411,    413.    .143 

V.   Browning  643 

V.  Bruce  n,   2 

V.   Brutrpemann  n.  300 

V.   Buchanan   County  559 

V.   Buckeye,   etc.,    Co.  n.    368 

V.   Buckley  n.  28S 

V.   Buhler  n.   40 

V.  Bulkeley  n.  438 

V.  Bull  n.  352 

V.   Burhank  62 

V.   Burckhartt  n.   4>;9 

V.  Burkhardt  n.  221 


V.    Burnell 

n.    10 

Burnett 

314 

Burton 

n.   476 

Butman 

322 

Camden 

n.    157 

Campbell 

n.   262 

Canal   Co. 

n.   196 

Canfield 

n.    22s 

Cape   Girardeau   Ct. 

n.   95 

Cappeller 

n.  40,  n.  68 

Cardoza 

n.  239 

Carey 

n.    5,    n.    221 

Castleberry 

96 

Cauthorn 

660 

Cavanac 

n.  22s 

Centerville   Bridge   Co. 

n.    300 

Chamber  of  Commerce 

n.   208 

Chase 

140 

Cincinnati,  etc.,   Co. 

394 

Cincinnati,  etc.,  R.  Co. 

n.   374,  n-   376 

Circuit  Court 

n.   550 

City  of  Baton   Rouge 

n.   87 

City  of  Topeka 

n.  359 

Clayton 

80 

Clough 

h.   92 

Cohen 

n-    579 

Coke   Co. 

416,    418,    424 

Columbia 

n.   507 

Commercial,    etc..     Bank 

n.    359,   n  'J74,   n.   437 
Commissioners 

149,    n.    346,    n.    484,    n.  527,    n.    643 

Com.  of  Jefferson  Co.  n.  4 
Common    Council   of   Fon-du-Lac    644 

Commonwealth    Bank  n.    376 

Company  331 

Cooper  Co.  n.  625 

Cooper    Co.    Ct.  482 

Cory  476 

Cotton  n.    79 

County  45 

County   Commissioners  n.    8,    241 

County  Ct.            n.  97,  n.  109,   n.    243 


Court 

49.    53.   87 

Cramer 

n.    74 

Craten 

624 

Cronan 

n.  391 

Cunningham 

n.    332 

Custer 

n.  25 

Davie 

473 

Davis 

n.  440,   624 

DeGress 

n.   262 

Deslonde 

T40 

Dike 

140 

Dimond 

n.    323 

District    Court 

470 

Doty 

n.   730 

Douglas  Co.,  etc 

,  Co. 

n.  410 

Dowlan 

n.   300 

Doyle 

n.    10 

Drew 

140, 

142,    n.    151 

Dubuclet 

62 

Dunlap 

n.    161 

Eberhardt 

n.  45 

Edwards 

n.    660 

Elder 

n.    153 

Elkin        n.    476, 

n.   4 

79. 

n.    503.    583 

Elliott 

n.    300 

Elwood 

n.  19 

Equitable   Loan, 

etc., 

Ass 

'n     n.    280, 
n.    401 

Essex  Bank 

n.  376 

Everett 

n.    239 

Farlee 

n.    730 

TABLE   OF    CITED   CASES. 


(References  are   to  Pages.) 


State 


V.   Farmers',  etc., 

Ass'n                n.   376 

Faulkner 

n.    221 

Ferguson 

170 

Fidelity,  etc.,  Co. 

n.  374 

Field 

797 

Finley 

n.  40,  n.  68 

Fitzgerald 

280 

Fleming 

n.   232,   n.   419 

Fon-du-Lac 

646,    653,    667 

Ford 

144 

Francis 

139,    144.  279 

Frantz 

n.   346 

Fraternal,    etc., 

n.    208 

Freeland     - 

447 

Freemont,-   etc.,    R 

Co.                       203 

Funck 

280,  n.   280 

Gaoriel 

n.    77 

Garner 

728 

Gary 

475 

Gasconade  Co.  Ct. 

n.   17 

Governor 

131,   134,    14 

0,    142.    148,    n.    I  SI 

Gates 

n.   280 

Gibbons 

612 

Giroux 

n.  848 

Gleason    260,  298, 

331,  n.  401,  n.  440 

Gordon 

n.  288,  n.  315 

Governor        131, 

134,    140,    142,    148, 

n.     151 

Grace 

n.   157 

Gracey 

57 

Gracy 

n.    239 

Graham 

271,    272 

Green 

n.   271,   n.   359 

Hall         n.  92,  n.  419,  n.   507,  n.  838 

Hammer  n.   406,   n.  410 

Hansford  63s,    636,  637 

Hannibal,    etc.,    Co.        n.    352,    n.  371 


Hardie 

Harris 

Harrison 

Hartford,   etc.,    R.   Co. 

Hawes 


n-    437 

441 

n.    575 

192,    193 

n.  92 

n.    633,    659,    66n 

n.  346 

n.    590 

46,    4£i 

"•  523,  583 

273,    274.    276 

n.  476 

26 

n.   84 

n.   498,  n.   502 

n.    1 14 

n.    in6,    558 

643,   n.    653 

n.    184 

612 

443.    n-    443 

n.    419 

260,    29S 

n.    575 

n.    406,    n.   448 

n.   40,   n.    68,   n.    230 

n.    601,    n.    643 

?n.    151,   n.    164,   260 
ones  n.   332,   n.   440,   n.   870 

udRC,    etc.,        n.    75,    n.   461,    n.    463, 
n.  476,  n.   502,  n.   507,  n.  550,  n.   575, 
n.  600 
.    Tit'lRrs  n.    498,   6:2 

,  JudRC  of  llic  EiKlitli  Dist.  Ct.       n.  92, 

535 


Heege 

Hcinmiller 

Henderson 

Herrald 

Hirzel 

Hixon 

Hocker 

Holiday 

Holmes 

Hopkins 

Houston 

Howard    County    Ct 

Howell 

Hudnall 

HuK 

Hunt 

Hunton 

Independent    School    Hist 

Ins.    Cii. 

Jackson 

Jenkins 

Tenninifs 

Jersey    City 

Tnhnson 

!onc» 
udRC,    etc.. 


State    V.    Judge    of    Fourth    Dist.    Ct. 

^       .  n.   97,   476 

V.  Justices  n.  8 

V.   Kearn  n.  438 

V.   Kellogg  n.    243 

V.    Kelly  n.  438 

V.    Kemen  561,    667 

V.  Kempf  n.  438 

V.   Keyes  475 

V.   King  399,    624 

V.  Kinkaid  n.   8,  n.  95 
V.   Kirby,  n.  68,  633,  634,  635,  636,  637, 

639 


Kirkland 

n. 

459 

Kirkpatrick 

n. 

778 

Knight 

n. 

103 

Lane 

346, 

622 

Laughlin         n.    214, 

n.    484,    n. 

497. 

n 

432 

Lawrence 

hs 

j^eatherman 

n.  260 

589 

Lehre 

n.  45,  n. 

300 

Lewis 

n.   5,  n. 

438 

Lincoln  County 

n 

121 

Lindell  R.   Co. 

n. 

359 

McArthur 

78 

McBride 

260 

McCardy 

n. 

179 

McClay 

n. 

706 

McConnell 

414 

McDaniel 

n. 

437 

MciJowell 

n. 

498 

McGarry 

n. 

440 

McGeary 

n. 

332 

Mclver 

n. 

221 

McLaughlin 

n. 

411 

McMillan 

n. 

401 

McNaughton 

n^ 

300 

McReynolds 

n. 

322 

Mace 

n. 

706 

Madison  St.   R.  Co. 

n.  352,  n. 

376 

Marshall 

n 

•  74 

Marlow 

27h, 

278 

Marvin 

664 

Mason 

n. 

410 

Massmore 

229 

Matthews 

n.   406,   n. 

410 

May 

n. 

332 

Mayor 

n.  221, 

552 

Mayor    of    St.    Paul 

632 

Meehan 

n.  271,  n. 

332 

Meek 

n. 

346 

Merry                      260, 

n.  260,   298, 

401 

Mcssmorc 

n. 

43"8 

Middleton 

n. 

•633 

Milwaukee 

646 

Milwaukee   Co. 

n.   601,   646, 

647 

Milwaukee      Chambe 

r      of      Com- 

tnerce 

n. 

208 

Milwaukee,  etc.,  R. 

"0.  n.  376,  n. 

410 

Minton 

n. 

332 

Missouri  Pac.   R.  R. 

Co. 

203 

MofHtt 

331 

Morales 

n. 

693 

Morris 

n. 

243 

Moslcy 

155 

Mossmore 

254 

Municipal  Court 

470,   n. 

502 

Mutual,   etc.,   Co. 

n. 

374 

N.    K.    R.   Co. 

192 

Nathan 

476 

Nebraska,  etc.,  Co. 

n. 

368 

Nib.  Tel.  Co. 

n. 

198 

Ncrvobig 

473 

TABLE   OF    CITED    CASES. 


XXXVU 


{References  are  to   Pages.) 


State  V.   Neville  n.   84,   n.   243 

V.  New   Haven,  etc.,   Co.                      n.   s 

V.  Nichols  n.    141,   652 

V.  Noonan  .    667 

V.  North  n.  322,  n.  332,  n.  415 


Norton 

n.    97 

Norwalk,  etc.,  Co. 

n.  359 

O'Brien 

n.  332 

Oliver 

n.    103 

O'Neill 

n.    579 

Orrick 

n.  605 

Orvis 

n.   402 

Otero 

n.    19 

Padgett 

622 

Palmer 

n.    121 

Parker 

n.    322 

Parsons 

n.   438 

Paterson            n.   401,  n. 

601, 

n.   663 

Patterson 

n.    837 

Pennsylvania,  etc. 

Co.  n. 

300 

n.  376 

People's  Building 

&  Loan  Ass'n, 

etc.. 

n.  217 

Pierce 

n.  346 

Pilsbury 

li.    221 

Pipher 

n.  352 

Pittsburgh,   etc., 

R.    Co. 

n.    352 

Police  Commissioners 

659 

Pollard 

n.    507 

Portage  City,   etc. 

,  Co. 

n.   374 

Porter 

IS3. 

n.    175 

Potts 

n.  478 

Price 

n 

.  262 

,  n.  476 

Probate  Court 

n.    575 

Racine 

n.   45 

Railroad    Co.         i 

92,    27 

[,    298,     373. 

n.    376 

Ramos 

n.  359 

Ramsey 

n.    02 

Rav 

n.  763 

Real  Estate  Bank 

260 

n.  352 

Redmon 

n.   763 

Regents,  etc.. 

n.  359 

Reid 

624 

Republican   Valle> 

R.   R. 

Co. 

n.    196 

Richardson      767, 

768,  n. 

778 

n.  870 

Riordan 

n.    332 

Robinson 

138 

Rodman 

n.    17 

Roe 

n.  437 

Rombauer          456 

n.    461, 

n.     479, 

n. 

S07, 

n.    536 

Rose                297, 

^01,   n. 

410, 

n.   448 

Ross 

n.  523^  837 

Rotwitt 

n.    64 

St.    John 

138 

St.  Louis  Court  of 

Appeals  n. 

95.  476 

St.    Louis,   etc.    Ins.    Co. 

n.    260 

St.  Louis  &  S.  F. 

R.  R.  Co. 

n.  214 

St.    Louis   School 

Board 

n.    679 

St.  Paul 

n.   579 

Saxon 

n.  441 

Schlemn 

740 

Schneider 

641 

Schnierle 

331. 

n.    401 

Schofield 

n.  32 

School  Dist. 

n.  6s 

Scott 

n. 

332, 

n.    730 

Seav 

n.    463 

Senft 

n>  657 

Sharp 

n. 

288, 

n.   441 

Shaw 

n.    10 

Shay 

tC  280 

Shelton 

n.    570 

Sherwood 

n.    IS7 

State 


State 


v.    Shields 

n. 

271 

Simkins 

n. 

419 

Sioux  City  &  P. 

R.   R. 

Co. 

203 

Slavens 

n.  45,-  n. 

239 

Slocum 

n. 

179 

Smith           n.     179 

,     n.     225,     n. 

507. 

659,     n.     679. 

836 

Sorenson 

474 

Sparks 

n. 

700 

State  Board,  etc.. 

n 

550 

State   Canvassers 

62 

Stackhouse 

n. 

478 

Standard  Oil  Co. 

n 

368,  n. 

374 

Steers             297, 

n-    437. 

n.    440, 

454 

Stein                     n. 

332,  n. 

401,  n. 

406 

Stewart 

n.  300, 

413.  n. 

837 

Stock 

n.  68 

Stone 

n.   134. 

260,  n. 

260 

Superior  Ct.         n 

502,  n 

503.  n. 

523 

Supervisors 

S,  r 

.   19 

Swepson 

622,    624, 

62s 

Taaffe 

n. 

157 

Taylo 

276 

Taylor 

n.  84,  n. 

280 

Texas  &  Pac.  K. 

Co. 

203 

Thayer 

n. 

151 

Thomas 

139 

Thompson 

n. 

157 

Timme 

n. 

575 

Tomlinson 

144,  n. 

280 

Town   of  Tipton 

n. 

438 

Town    of    Westport          1 

.     288, 

297. 

n. 

300,  n. 

315 

Towns 

n. 

459 

Tracy                     n 

.  410,  n 

411,  n. 

41S 

Trustees,   etc. 

n.   8 

Union  Inv.  Co. 

n. 

401 

Uridil                  n. 

332.   n. 

352,   n. 

419 

Vail 

n.  260, 

297 

Valliant 

n. 

660 

Van  Camp 

n. 

157 

Vaughn 

762 

Vigilant  Ins.   Co. 

n. 

374 

Village  of  Bradford 

415 

Ward 

n. 

714 

Warmouth 

n.  134, 

140 

Watertown 

n. 

161 

Wear 

n. 

109 

West  Wisconsin 

R.  Co. 

n. 

414 

Whitaker 

n. 

507 

Whitcomb 

140 

White 

n. 

208 

Whitford 

552 

Whittaker 

S6i 

Wilcox 

n. 

497 

Williams 

241, 

n.    243, 

264 

Wilson 

639 

Withers 

n. 

332 

Wolfe 

n 

.   79 

Wrightson 

n 

.    64 

W.  U.  M.   Life  Ins.  Co. 

n. 

374 

Wythe 

n. 

503 

Young 

459.    n- 

679 

ex   rel. 

198 

Bishop 

2^7 

Braun 

475 

Cauthorn 

544. 

5.45 

City  of  Lyons 

32s 

Clark  County  Ct. 

452. 

515 

Dobson 

583 

Ely.    ex   rel. 

341 

Frazier 

401 

Hays 

297 

xxxvni 


TABLE   OF    CITED    CASES. 


{References   are   to   Pages.) 


State,   ex   rel.   v.    Henry   Baldwin     767,    769 

V.  Hoblitzelle  220 

V.  Judge  of  the  Superior  Ct.  n.  106 
V.  Lafayette  County  Ct.  n.  109,  558 
V.  McMillian                                     297,   299 

V.  Marlow  325 

V.  Moniteau  Co.  Ct.  641 

V.  Railroad  220 

V.   Rost  583 

V.   Shalton  582 

V.   Smith  544 

V.   Switzler  582 

V.  Town  Council  of  Cahaba  325 

V.  Townsley  397 

V.  Trigg  454 

V.   Walbridge  641 

V.  Weinfurther  643 
State  Bar  Ass'n,  Ex  parte  95,  n.  679 
State    Board    of    Education    v.     West 

Point  n.  8 
State's  Attorney  v.  Selectmen  of  Brand- 
ford  241 
Stearns  v.  Cope  418 
Stedman  v.  Bradford  n.  601 
Stephens  v.  Railroad  603 
Stephenson  v.  Stephenson  625 
Sternbergcr  v.  Sternberger  869 
Stetson  V.  Penobscot  Company  n.  673 
Stettauer  v.  Construction  Co.  212 
Stevenson  v.  Danvers  847 
Stewart  v.  United  States  n.  817 
Stoddard  v.  Benton  n.  221 
Stokes.  In  re  n.  789 
Stokes  V.  Kharr  544 
Stone  V.  Boston  541 
V.  Kellogg  212,  n.  214 
V.  Mayor,  etc.,  552 
V.  Wetmore  n.  300 
Strang,  Ex  parte  n.  695 
Stratford  v.  Neale  526 
Stratton  v.  Commonwealth  539 
Strauss,  In  re  n.  832 
Street  v.  State  n.  848 
Strobach,  Ex  parte  n.  590 
Strong,  In  re  n.  157,  34& 
Stroud  V.  Consumer's  Water  Co.  n.  633 
Strupp,  In  re  n.  817 
Stubcnrauch  v.  Neyenesch  12 
Sturtcvant  v.  State  n.  yi^ 
Sullivan  v.  Alexander  699 
Supervisors  v.  Diirant  183 
Supervisors  v.  Magoon  S63 
Supervisors  v.  Rogers  183 
V.  Sui)crvi8ors  78 
Supervisors  of  Culpepper  v.   Gorrcll  ct 

al.  504 

Supervisors  of  Onondaga  v.  Briggs  559 

Swan   v.   (iray  105 

Swann,  Kx  parte  n.  764 

Swamu-in  v.  Matson  699 

Swarlh  v.   I'coplc  n.  359 
Swarthout  v.   McKnight             n.  45,   n.    103 

Swartz  v.  Naiih  n.  92 

SwcarinKcn,    Kx   parte  826 

Sweet  V.  Coiiley  n.  8 

Swift  V.  KJchardH'in  n.  214 


TaKK-irt  v.  Jamm  n.  410 

Talliot  V.    r)rnt  n.  484 

V.   Karl  of  Shrewsbury  777 

V.   Hudiion  461 

Talbot    Paving   Co.   v.    Detroit  n.    19 


Talcott  V.   Pine   Grove 
Talmadge   v.   Potter 
Tappan    v.    Gray 
Tarble,    In   re 
Tarbox  v.   Sughrue 


192,  193 

544 

327 

n.  778 

n.  280,  n.  332 


Tarver  v.   Commissioners,   etc.,  n.   8 

Tawas,   etc.,   R.   Co.   v.   Judge  n.   2 

Tayloe,  In  re  n.  ^30 

Taylor   v.   Carryl  737 

v.   Gillette  n.    40 

V.  Judge    of    St.    Clair    Circuit  572 

V.   Tainter  819 

v.  Tripp  31 

Tennessee,  etc.,  R.  Co.  v.  Moore      140,  146, 

n.  151 
Terhune  v.   Potts  n.   288 

Territory   v.   Armstrong  n.   309,   n.   419 

Territory    v.    Lockwood  n.    401,    412 

v.  Potts  n.  68 

V.   \  irginia  Road  Co.  n.  437 

Terry,   Ex  parte  n.   789 

Tetherow    v.    Grundy    Co.    Ct.  483 

Tewksbury    v.    County    Commissioners 

575.    646 
Thomas,   In  re  n.  817 

Thomas  v.    Calley  460 

v.   Commissioners  235 

V.   Mead  458,  483,   n.   502,   506 

Thompson,  In  re  n.   764 

Thompson   v.    Church  605 

V.  Moran  n.  438 

V.  Multomah  552 

V.   Oglesby  863 

v.  School  Dist.   JNio.   6  of  Crockery    572 
Thompson    v.    Tracy  n.    459 

Thornton,  Ex  parte  820,  826 

Tiedt  V.   Carstensen  12 

Tiffany,    In    re  n.    653 

Tillman    v.    Otter  n.    332 

lilton's    Case  460 

Tobey  v.  Hakes  n.  217 

Toledo,  etc.,  R.  Co.  v.   Chenoa  n.  605 

Toney,    Ex   parte  728,   758,    759 

Townes   v.    Nichols  n.    8 

Townsend  v.   Copeland  566 

Trainer   v.    Porter  584 

'IVapnall,    Ex   parte  679 

Truett  et  al.  v.  Taylor  et  al.  362 

Trumbo  v.   People  S53 

Trustees,  etc.,  v.  People  n.  239 

Trustees   of    Schools  v.    School    Direct- 
ors 592,    593.   n.   601 
Trustees  Wabash  &  Erie  Canal  v.  John- 
son n.  87 
Tucker,   iCx  parte                                          n.  536 
Tucker  v.  Aiken  176 
V.  Rankin                                                    561 
Tullos   V.    .Sedan                                                 850 
Tupper  V.   Dart                                          n.  476 
Turner,    I'-x   parte                                              797 
Turner  v.  Mayor,  etc.,  of  Forsythc       n.  497 
V.  Rainer                                                     526 
Turnpike  Co.  v.  Brown           140,   142,  n.   151 
V.   State  f53 
Tylslra  v.   CharU'stown                                    483 


U 


Underwood,    In    re  n.    764 

Union,    etc.,    R.    Co.    v.    Hall        n.    10,    192. 
n.    106,   n.   22l 
(Tnited   States,    Ex   parte  n.  97 

United    States   v.    Hank   of   Alexandria   n.    8 


TABLE   OF    CITED    CASES. 


{References  are  to   Pages.) 


United    States   v.    Black 
V.  Blaine 
V.  Booth 
V.  Boutwell 
V.    Brawner 
V.  Caldwell 
V.  Commissioner 
V.   Davis 
V.   Ferriera 
V.   Green 


1  lo 

n.   127 

742,    744,    745 

n.    127 

n.    802 

837 

100,  n.    127,   223 

690,   864,   n.   864 

619 

n.   864 


V.   Guthrie        100,    no,    112,    n.    127,    153 


V.   Jung  Ah  Lung 

V.  Lamont 

V.    Lawrence 

V.   Lee  Co. 

V.  Lewis 

V.  Lockwood 

V.  Macon  Co.  Ct 

V.  Muscatine 

V.   Peters 

V.   Rauscher 

V.   Ky.   Co. 

V.   Schurz 

V.   Seaman 

V.   Sing  Tuck 

V.   Williamson 

V.  Windom 
United   States  ex  rel.   v.   Bayard 
Universal   Church  v.   Trustees 
UpdegrafF   v.    Crans 
Utica   Ins.   Co.   v.   Tillman 


n.  708 

n.  127 

153 

n.   184 

n.   739 

331,   n.  401,   412,   n.   448 

n.    187 

n.    187 

n.  97,  478 

n.   838 

n.   6 

1.    127 

n.    9S 

n.  848 

n.  840 

n.    127 

126 

n.   32 

323.    331 

349 


n.    95,    125 


Van  Aernam,  Ex  parte  n.  817 

Vance    v.    Wilson  326 

Van   Orsda   v.    Howard  171 

Vaughan    v.    Ashland  583 
Vermont  &  Massachusetts  Railroad  v. 

County  Commissioners  461 
Vicksburg  K.  Co.  v.  Lowry  140,   147,  n.   151 

Villareal    v.    Mellish  777 

Vinsant  v.   Knox  312 

Vintner's  Co.  v.   Passey  169 

Virginia,   Ex  parte  730 

Virginia  v.   Reeves  n.  74 

V.   Rives  n.    103 

Vitt   V.   Owens  558 

Voisin  V.   Leche  n.  406 

Von  Arx  v.    San  Francisco,  etc.,        n.    208 

Von    Hoffman    v.    City    of   Ouincy  183 

Voorhees,  In  re  826 

Vrooman  v.  Michie  n.  346 

W 


Wade  V.   Judge 

Wadsworth  v.   Queen  of  Spain  n. 

V.   Sibley 
Walcott   V.    Wells  n. 

Waldrip,    In    re  n.   854,   n. 

Wales   V.    Whitney  n.    693, 

Walker,   Ex  parte 

Walker,  In  re  n. 

Walker  v.   Cheever 

V.  Louden  &  Blackwall  Railroad  Co 

V.  McDonald  n. 

Wall  V.   Blasdel 

Wallace    v.    Jameson  n. 

Walter    v.    Belden 

V.   Belding  n. 

Wammack  v.   Holloway  n. 

Ward  V.   Board   of  Equalization 

V.  Farwell  n. 


753 
523 
667 

870 
732 
694 
711 
327 
676 
672 
140 
600 
35 
164 
280 
641 
352 


Ward   V.    Maryland 
Warman,    In    re 
Warner  v.  Sucterman 
Warwick    v.    Mayo 
Washaw  v.  Gimble 


762 
n.  864 

458 
n.  527 
n.  778 


Washburn  v.  Phillips    460,  461,  483,  n.  498, 

506 
Washington,  etc.,  R.  Co.,  Ex  parte       n.  84 


Fergus 


Water   Co 

V.   Rives 
Watkins,    Ex   parte 


Watson  v.  Major 

V.   Plainfield 
Wayman  v.  Smith 
Weaver    v.    Lamman 
Webb   V.    Commissioners 

v.  Durham 
Webster  v.   Wade 
Weed  v.    Lewis 
Weider  v.  Overton 
Weidwald  v.   Dodson 
Weihenmayer  v.   Bitner 
Welch  V.  County  Court 
Welchel  V.  State 
Welles  V.   City  of  Detroit 
Wells  V.  Hicks 

V.   Pierce 


201 
n.  97 
713,    720,    n.    725,    7^0, 
736,    80s 


Wells-Fargo    &    Co.    v.    Northern    Pac 

R.  R.  Co. 
Wesson  v.  Washburn  Iron  Co. 
West,  Ex  parte 
West's   Appeal 
West  V.   Ferguson 
Western  R.  Co.  v.  De  Graff 
Weston,    Ex    parte 
Weston  V.   Charleston 
v.   City   Council 


n.  332 

n-  550 

524 

668 

63 

623 

41 

n-  579 

n.  60s 

n.  10 

n.  214 

n.  590 

n.  359 

571 

594 

327 


213 

317 

n.  750 

n.  359 

491,  492 

140 

539,  584 

n.  2 

n.  469 


West  River  Bridge  Co    v.  Dix     584,  n.  603 

Whalin  v.  City  of  Macomb  n.  309 

Whipple   V.    Hopkins  n.    92 

White  V.   Boyce  n.'  625 

V.    Steele  522 

V.   Wagar  n.   579 

Whitesides  v.    Stuart  221 

Whitney,    Ex    parte  100,    676 

Whitney   v.    Board  667 

Whittaker   v.    Village   of   Venice  561 

Wight  V.   People  n.   43? 

Wilcox  V.   Nolze  823,   824 

V.  South  694 

Williamette   Woolen   Mfg.  Co.  v.   Bank 


of    British    Columbia 
Williams,    In   re 
Williams  v.   City  of  New  Haven 

V.  Hartford,  etc.,   R.  Co. 

V.  Judge,   etc., 

V.  Saunders 

V.   State 
Williamson   v.    Berry 

V.   Lewis 
Willis   v.    Chambers 
Wilson,  Ex  parte 
Wilson,    In    re 
Wilson  v.  Bartholomew 

V.  GifFord 

v.  Price-Raid    Aud.    Com. 
Windman   v.    City   of   Vincennes 
Winnegar    v.    Roe 
Winslow   v.   Anderson 
Winston  v.   Mosley 
Winters  v.  Burford 
Withers   v.    Burford 

v.   Commissioners 


323 

n.   802 

n.   22s 

n.  62"; 

n.  8 

n.  97 

n.   332 

756 

n.  708,  n.  840 

n.   60s 

n.  712 

552,    S65,    n.    575 

572 

n.    643 

-    138 

326 

171 

625 

iSS 

n.   21 

n.   22 

n.  536 


xl 


TABLE   OF    CITED    CASES. 


{References   are   to   Pages.) 
^f  Where  w  is  prefixed  to  a  page  number   the  case  is  cited  in  a  note. 


Wolcutt  V.   Lawrence  County  482 

Wolpert  V.  Newcomb  n.  629 

Wood  V.   Jefferson  County  Bank              349 

V.   Strother  S6 

Woodward  v.   Bonithan  462 

Woodworth  v.  Gibbs  n.  590,  n.  640 

Wooldridge,    In   re  n.    764 

Woolridge,  In  re  n.  760 

Woolsey  v.    Board  11 

Worcester  &  N.  R.  R.  Co.  v.  Railroad 

Commissioners  646 

Work  V.  Parrington  820 

Worthington  v.  Jeffries  n.  469 

Wraugham,    Ex    parte  385 

Wren    v.    Indianapolis  n.    225 

Wright  V.  Allen  331,  n.  401 

V.   Commissioners  567 

V.  Gallatin    Co.    Commissioners      n.    221 

V.  People  n.    264 

V.   Sharp  89 


Wright  V.    State 
Wyandotte  v.   Corrigan 


Yarbrough,    Ex   parte 
Yates  V.  Palmer 
Yeager,   Ex  parte 
Yerger,  Ex  parte 
Yonkey  v.  State 
Young  V.  Lane 

V.   Lynch 
Yung  Jon,  Ex  parte 


Zelle'v.  McHenry  n.  73° 

Zimmerman    v.    Snowden  660 

Zylstra  v.   Corporation  of  Charlestown  461 


757 

8^0 

734 

464 

730 

n. 

>,39 

n. 

410 

n. 

187 

211 

n. 

739 

EXTRAORDINARY  LEGAL 
REMEDIES. 


CHAPTER  L 


MANDAMUS. 

Section  1.— In  General. 

1.     Detinition. 

"A  WRIT  of  mandamus  is,  in  general,  a  command  issuing  in  the 
King's  name  from  the  Court  of  King's  Bench,  and  directed  to  any 
person,  corporation  or  inferior  court  of  judicature  within  the  King's 
dominions,  requiring  them  to  do  some  particular  thing  therein  speci- 
fied, which  appertains  to  their  office  and  duty,  and  which  the  Court 
of  King's  Bench  has  previously  determined,  or  at  least  supposes,  to 
be  consonant  to  right  and  justice."     Ill  Blackstone  Comm.  no. 

"A  command  issuing  from  a  common  law  court  of  competent 
jurisdiction,  in  the  name  of  the  state  or  sovereign,  directed  to  some 
corporation,  officer  or  inferior  court,  requiring  the  performance  of 
some  particular  duty  therein  specified,  which  duty  results  from  the 
official  station  of  the  party  to  whom  the  writ  is  directed,  or  from 
operation  of  law."    High,  Ex.  Legal  Remedies,  §i. 


REX  V.  BARKER. 
1762.     Court  of  King's  Bench.     3  Burrows,  1265. 

Application  for  writ  of  mandamus  to  be  directed  to  certain 
trustees  of  a  Presbyterian  meeting-house,  requiring  them  to  admit 
Christopher  Mends  as  minister,  he  being  duly  elected  to  such  office. 

Lord  Mansfield  (quoting  from  Rex  v.  Blooer,  2  Burr.  (K.  B.) 
J043) — Where   there   is   a    right    to   execute   an    office,    perform   a 

I 


2  GILMAN    ET   AL.    V.    BASSETT   ET    AL.  §    I 

service  or  exercise  a  franchise  (more  especially  if  it  be  a  matter  of 
public  concern,  or  attended  with  profit),  and  a  person  is  kept  out  of 
possession  or  dispossessed  of  such  right  and  has  no  other  specific 
legal  remedy,  this  court  ought  to  assist  by  mandamus ;  upon  reasons 
of  justice  and  of  public  policy,  to  preserve  peace,  order  and  good 
government. 

A  mandamus  is  a  prerogative  writ ;  to  the  aid  of  which  the  subject 
is  entitled,  upon  a  proper  case  previously  shewn,  to  the  satisfaction 
of  the  court.  The  original  nature  of  the  writ,  and  the  end  for  which 
it  was  framed,  direct  upon  what  occasions  it  should  be  used.  It  was 
introduced  to  prevent  disorder  from  a  failure  of  justice  and  a  defect 
of  police.  Therefore  it  ought  to  be  t:sed  on  all  occasions  where  the 
law  has  established  no  specific  remedy,  and  where  in  justice  and 
good  government  there  ought  to  be  one. 

In  State  v.  Bruce,  3  Brev.  (S.  Car.)  264,  Mandamus  is  defined  as  "a  crim- 
inal process  relating  to  a  civil  right."  See  also  Dunklin  Co.  v.  County  Ct., 
23  Mo.  449;  Tawas,  etc.  R.  Co.  v.  Judge,  44  Mich.  479;  Legg  v.  Mayor, 
42  Md.  203;  Weston  v.  Charleston,  2  Pet.  (U.  S.)  449;  Holmes  v.  Jennison, 
14  Pet.  (U.  S.)  540. 


2.     Prerogative -writ  or  w^it  of  right. 

See  Commonwealth  of  Kentucky  v.  Wm.  Dennison,  Governor  of 
Ohio,  24  How.  (U.  S.)  66. 


GILMAN  ET  AL.  V.  BASSETT  et  al. 

1866.     Supreme  Court  of  Errors  of  Connecticut.  33  Conn.  298. 

"  Butler.  J. — This  is  an  application  by  a  special  committee  of  the 
south  school  district  of  Hartford,  asking  on  behalf  of  said  district 
a  peremptory  mandamus  to  compel  the  stated  district  committee  to 
carry  into  effect  a  vote  of  the  district  directing  that  committee  to 
reinstate  a  teacher  whom  they  had  removed  from  the  charge  of  a 
p.'irticular  school.  The  superior  court  on  request  of  the  a])])licants 
issued  an  alternative  mandamtis,  requiring  the  stated  committee  to 
CDmply  with  the  vote  of  the  district  or  show  reason  why  a  peremp- 
tory mandanms  should  not  issue,  and  that  committee  still  refusing 
to  comply,  appeared  in  court  and  set  forth  their  reasons  in  a  return. 
Tho  farts  so  set  up  were  traversed,  and  on  a  hearing  the  court 
found  the  facts,  and  reserved  the  questions  arising  thereon  for  our 
advice.     The  argument  has  taken  an  extended  rancje,  but  the  case 


^    1  MANDAMUS,    IN    GENERAL.  3 

turns  on  the  question  whether  it  was  competent  for  the  district  to 
direct  the  act  to  be  done,  and  the  consequtent  duty  of  the  committee 
to  do  it. 

Had  then  the  district  a  legal  right  to  pass  the  vote,  and  if  so,  could 
the  committee  lawfully  refuse  to  obey  it? 

There  can  be  no  question  in  respect  to  the  power  of  the  district  to 
pass  the  vote.  The  law  constituted  the  district  a  corporation  and 
imposed  upon  it  the  duty  of  establishing  and  maintaining  the  neces- 
sary schools  within  its  limits.  For  that  purpose  all  the  necessary 
power  is  given.  The  district  is  required  and  expected  to  elect  annu- 
ally a  district  committee.  If  they  neglect  to  do  so,  the  board  of 
visitors  are  authorized  to  appoint  them,  and  if  the  district  neglect 
to  provide  a  teacher  and  rooms  the  committee  are  authorized  to  pro- 
vide them,  that  a  school  may  be  kept  and  the  education  of  the  chil- 
dren secured.  But  such  authority  is  given  to  the  committee  contin- 
gently, to  be  exercised  only  in  the  event  that  the  district  fail  to  ex- 
ercise their  power  or  do  their  duty.  When  the  district  act,  either 
in  respect  to  teachers  or  rooms,  their  action  is  exclusive,  and  the 
committee  are  powerless.  They  cannot  override  the  action  of  the 
district ;  and  if  that  action  is  conformable  to  law,  they  should  obey 
or  resign,  or  show  some  legal  excuse  for  their  disobedience.  If  they 
fail  to  show  such  excuse,  it  is  the  duty  of  the  court  upon  application 
to  compel  them  to  obey  by  mandamus. 

In  this  case  the  committee  come  into  court  and  allege  several  ex- 
cuses. 

In  the  first  place,  they  allege  that  the  writ  of  mandamus  is  a  pre- 
rogative writ,  and  that  the  court  cannot  issue  it  except  to  prevent 
disorder  from  a  failure  of  justice  and  a  defect  of  police ;  and  that  it 
regularly  issues  only  in  cases  relating  to  the  public  and  the  govern- 
ment, and  where  in  justice  and  good  government  there  ought  to  be 
one.  Doubtless  the  zvrit  zvas  originally  a  prerogative  one,  but  it  has 
ceased  to  depend  upon  any  prerogative  pozver,  and  is  now  regarded 
in  much  the  same  light  as  ordinary  process.  And  admitting  the 
other  propositions  to  be  true,  the  case  falls  within  them.  Education 
in  this  state  is  a  matter  of  public  governmental  concern,  and  has  been 
such  from  its  organization.  This  school  district  was  created  as  a 
public  territorial  corporation,  and  the  duty  of  providing  for  the  edu- 
cation of  the  children  within  its  limits  is  imposed  upon  it  by  public 
statute  law.  And  the  committee  were  elected  and  their  duties  pre- 
scribed by  force  and  direction  of  the  same  law.  It  is  a  clear  case, 
therefore,  for  a  mandamus,  and  a  case  where  that  is  the  only  legal 
and  specific  remedy. 

The  superior  court  must  be  advised  to  issue  a  peremptory  man- 
damus. 


4  AMERICAN   WATERWORKS  CO.   V.   STATE  EX   REL.  §    I 

In  accord:  Kendall  v.  United  States,  12  Pet.  (U.  S.)  527;  Arberry  v. 
Beavers,  6  Tex.  457 ;  State  v.  Com.  of  Jefferson  Co.,  1 1  Kan.  66 ;  Haymore  v. 
Com.  of  Yadkin,  85  N.  Car.  268. 

Contra:  School  Inspectors,  etc.,  v.  People,  20  111.  525;  People  v.  Hatch, 
22  111.  134;  Ottawa  v.  People,  48  111.  240.  Under  the  Illinois  statutes  it  is 
now  held  that  the  remedy  is  an  ordinary  civil  action.  People  v.  Weber, 
86  III.  2%2',   Illinois,  etc.,  R.  Co.  v.  People,  143  111.  434. 

In  New  York  the  courts  seem  inclined  to  treat  the  writ  as  a  prerogative 
one.     People  v.  Board  of  Police,  26  N.  Y.  316. 

See  also  County  of  Calveras  v.  Brockway,  30  Cal.  325;  O.  &  V.  R.  Co.  v. 
Plumas  Co.,  27  Cal.  354;  Moody  v.  Fleming,  4  Ga.  115. 


3.     Regarded  generally  as  an  ordinar}-  action  at  law. 

/aiERICAX  WATERWORKS  CO.  v.  STATE  e.k  rel. 

1891.     Supreme  Court  of  Nebraska.     31  Neb.  445,  48  N.  W.  64. 

NoRV.AL^  J. — The  defendants  in  error  filed  a  petition  in  the  dis- 
trict court  of  Douglass  county  against  the  plaintiff  in  error,  praying 
that  a  peremptory  writ  of  mandamus  may  issue  to  compel  it  to  fur- 
nish and  supply  water  on  the  premises  of  the  defendants  in  error,  at 
1202  and  1206  Cass  Street,  in  the  City  of  Omaha.  On  the  iSth  day 
of  September,  1889,  application  was  made  for  said  writ  to  Hon. 
Eleazer  Wakely,  one  of  the  judges  of  said  court,  at  chambers. 
Thereupon  said  judge  ordered  that  the  plaintiff  in  error  show  cause 
on  Saturday  following  why  said  writ  should  not  be  granted.  At  the 
time  named  the  plaintiff  in  error  filed  its  answer,  submitting  the 
facts  embodied  in  the  affidavits  of  George  Zeigler  and  Nelson  M. 
Howard,  attached  to  the  answer,  as  a  reason  why  the  writ  should 
not  issue.  On  the  23d  day  of  September,  1889,  the  application  was 
heard  before  said  judge  at  chambers.  On  the  hearing  the  defend- 
ants in  error  read  in  support  of  their  application  the  affidavits  of  J.  J. 
O'Connor,  John  l^>urns,  David  Mahonoy,  John  Mosset,  Vincent  Ken- 
ney,  C.  C.  Field,  John  Drummond,  Belle  Craycroft,  Mrs.  John  Mos- 
set, Else  Mark,  H.  A.  Mosset,  and  James  Johnson.  The  plaintiff 
in  error  objected  at  the  time  to  the  reading  and  consideration  of  said 
affidavil.s,  which  objection  was  overruled.  The  affidavits  were  read 
and  considered,  and  the  plaintiff  in  error  duly  excepted.  The  judge 
granted  a  itcremptory  writ  of  mandamus  as  prayed.  The  plaintiff*  in 
error  filed  a  motion  for  a  nev/  trial,  which  was  overruled,  and  an 
exception  was  taken  to  the  ruling  thereon.  The  petition  and  the  affi- 
davits attachcf]  to  the  answer  arc  exceedingly  long,  and,  for  a  proper 
understanding  of  the  questions  presented,  it  is  not  deemed  necessary 
that  they  be  reported.     Tt  is  sufficient  to  say  that  the  facts  sot  \\\^  m 


§     I  MANDAMUS,     IN     GENERAL.  5 

the  application  are  controverted  by  the  affidavits  attached  to  and 
made  a  part  of  the  answer,  so  that  without  proof  being  offered  to 
support  the  allegations  of  the  petition  a  peremptory  writ  of  man- 
damus could  not  ])ropcrly  issue.  The  facts  contained  in  the  numer- 
ous affidavits  read  by  the  defendants  in  error  fully  sustained  the 
allegations  of  the  petition.  Under  the  provisions  of  the  Code,  w^hen 
an  order  to  show  cause  why  an  order  for  a  peremptory  writ  should 
not  issue  is  made  and  served  upon  the  defendant,  and  no  sufficient 
showing  is  made  why  the  act  required  should  not  be  performed,  a 
peremptory  writ  of  mandamus  may  issue,  if  it  appears  on  the  face 
of  the  application  that  the  relator's  right  thereto  is  clear.  But  when 
the  facts  upon  which  the  application  is  based  are  disputed  on  the 
hearing  of  the  order  to  show  cause,  an  alternative,  and  not  a  per- 
emptory, writ  must  be  first  issued.  Code  648 ;  Schend  v.  Society,  49 
Wis..  237,  5  N.  W.  Rep.  355  ;  State  v.  Supervisors,  64  Wis.  220,  24  N. 
W.  Rep.  905.  When  cause  is  shown  why  a  peremptory  writ  should 
not  be  allowed,  an  issue  must  be  formed  which  is  made  up  by  the  issu- 
ing of  the  alternative  writ  and  the  defendant's  answer  thereto.  If 
no  answer  is  filed  the  peremptory  writ  may  issue.  Error  was  com- 
mitted in  determining  the  case  on  affidavits,  over  the  objection  of  the 
plaintiff  in  error.  Section  653  of  the  Code  of  Civil  Procedure  pro- 
vides that  "no  other  pleading  or  written  allegation  is  allowed  than 
the  writ  and  the  answer.  These  are  the  pleadings  in  the  case,  and 
have  the  same  effect,  and  are  to  be  construed  and  may  be  amended 
in  the  same  manner,  as  pleadings  in  a  civil  action,  and  the  issues 
thereby  joined  must  be  tried,  and  the  further  proceedings  thereon 
had  in  the  same  manner  as  in  a  civil  action."  It  expressly  provides 
that  the  issues  joined  in  proceedings  for  mandanuis  must  be  tried  in 
the  same  manner  as  in  a  civil  action.  The  facts  cannot  be  deter- 
mined on  ex  parte  affidavits  against  the  objection  of  a  party.  The 
facts  must  be  established  by  testimony  taken  by  depositions,  or  by 
calling  witnesses,  so  that  an  opportunity  can  be  had  to  cross-examine 
the  witnesses.  State  v.  Supervisors,  64  Wis.  218,  24  N.  W.  Rep.  905. 
The  peremptory  writ  issued  in  the  case  will  be  treated  as  an  alterna- 
tive writ,  and  the  cause  will  be  remanded  with  leave  to  the  plaintiff 
in  error  to  answer,  and  for  further  proceedings.  Judgment  accord- 
ingly.   Other  judges  concur. 

See  Kendall  v.  United  States,  12  Pet.  (U.  S.)  524;  Kentucky  v.  Dennison, 
24  Howard  (U.  S.)  66;  People  v.  Colborne,  20  How.  Pr.  (N.  Y.)  378;  State 
V.  New  Haven,  etc.,  Co.,  41  Conn.   134;  Belmont  v.  Reilly,  71   N.  Car.  260. 

Under  the  California  Codes  JNIandamus  is  a  special  proceeding.  Rosenbaum 
V.  Board  of  Supervisors,  28  Fed  223.  So  also  in  N.  Dak.,  State  v.  Carev,  49 
N.  W.  164.     See  also  State  v.  Lewis,  76  Mo.  370. 

Although  to  a  considerable  extent  modified  by  statutory  provisions,  the 
jurisdiction  of  the  courts  in  Mandamus  is  still  governed  by  the  common  law 
rules.    Kimball  v.  The  Union  Water  Co.,  44  Cal.  173. 


O  STATE  V._  SUPERVISORS  OF   WASHINGTON   CO.  §     I 

Having  all  the  elements  of  an  action  at  law,  the  proceeding  in  Mandamus 
is  regarded  generally  as  an  original  proceeding  or  suit,  rather  than  a  final 
process  or  execution.    McBane  v.  People,  50  111.  503. 

All  courts  of  general  common  law  jurisdiction  have  usually  the  right  to 
issue  the  writ.  Jurisdiction  is  frequently  conferred  upon  appellate  courts  by 
statute  in  the  various  states.  In  all  cases  such  courts  are  held  to  have  au- 
thority to  issue  the  writ  in  aid  of  their  appellate  jurisdiction.  Original  juris- 
diction has  never  been  conferred  upon  the  Federal  Courts,  and  when  the  writ 
is  issued  by  these  tribunals  it  is  in  the  nature  of  an  ancillary  writ,  to  aid  a 
jurisdiction  already  obtained.  Marbury  v.  Madison,  i  Cranch  (U.  S.)  137; 
Smith  V.  Jackson,  i  Paine  (U.  S.)  453;  McEntire  v.  Wood,  7  Cranch  (U.  S.) 
504;  United  States  v.  Ry.  Co.,  2  Dill.  (U.  S.)  527  Rosenbaum  v.  Board  of 
Supervisors,  28  Fed.  223;  Gares  v.  N.  W.  Nat.  Bid.,  etc.,  Ass.,  55  Fed.  209. 


4.     Petitioner  must  show  a  clear  legal  right. 

STATE  EX  REL.  LORD  v.  SUPERMSORS  OF  WASHINGTON 

COUNTY. 

1850.     Supreme  Court  of  Wisconsin.     2  Pinney  (Wis.)  552. 

Jackson,  J. — An  application  is  made  to  this  court  for  a  peremp- 
tory mandamus,  to  be  directed  to  the  board  of  supervisors  of  Wash- 
ingi:on  county,  commanding  them  to  proceed,  under  the  act  of  the 
last  session  of  the  legislature,  to  let,  to  the  lowest  bidder,  the  con- 
tract for  the  erection  of  the  county  buildings,  and  to  levy  an  addi- 
tional tax  upon  the  taxable  property  of  the  county  for  the  purpose 
of  defraying  the  expense  and  cost  of  their  erection. 

A  writ  of  mandamus  is  the  highest  judicial  writ  known  to  our 
constitution  and  laws,  and,  according  to  long  approval  and  well  es- 
tablished authorities,  only  issues  in  cases  where  there  is  a  spceiHc 
lc;ial  rii^/it  to  be  enforced,  or  zvhere  there  is  a  positive  duty  to  be  and 
which  can  be  performed,  and  zvhere  there  is  no  other  specific  legal 
remedy.  W^here  the  legal  right  is  doubtful,  or  where  the  performance 
of  the  duty  rests  in  discretion,  a  writ  of  mandamus  cannot  rightfully 
issue.  Kendall  v.  United  States,  12  Pet.  (U.  S.)  613;  18  Wend.  (N. 
V.)  80;  5  j'.inn.  rPa.)  103;  12  Johns.  (N.  Y.)  416^1  Cowp.  (K.  B.) 
423- 

Tested  by  these  principles  of  law,  should  the  present  application 
be  granted? 

The  following  is  the  act  which  is  sought  to  be  enforced  by  this 
>vrit : 

"The  lv-)ard  of  su|)crvisors  shall,  on  the  first  Monday  of  May  next, 
prorrcd  to  let,  to  the  lowest  bidder,  the  contract  for  the  erection  of  a 
goofl  and  commodious  court-house,  upon  the  plan  and  style  generally 


§    I  MANDAMUS,    IN    GENERAL.  7 

adopted  by  the  different  counties  of  this  state,  a  good  and  sufficient 
jail,  and  good  and  commodious  fire-proof  clerk's  and  register's  office, 
upon  grounds  in  the  village  of  Port  Washington,  to  be  located  by  the 
supervisors  of  the  county  of  Washington ;  said  buildings  to  be 
erected  and  ordered  during  the  summer  of  1850,  and  finished  by  the 
first  of  July,  1851 ;  and  for  the  purpose  of  defraying  the  expense  and 
cost  of  erecting  said  buildings,  the  said  supervisors  are  directed  to 
levy  an  additional  tax  upon  the  taxable  property  of  said  county,  in 
addition  to  the  ordinary  taxes  of  said  county  for  the  year  1850,  equal 
to  the  amount  of  the  contract  price  of  said  buildings." 

Various  objections  were  raised  by  the  respondents,  and  ably 
argued  to  this  court,  which  it  is  not  necessary  to  decide,  among 
v/hich  is  the  constitutionality  of  the  act  of  1850. 

The  court  are  all  of  the  opinion  that  the  power  to  award  the  writ 
in  a  case  like  the  present,  is  clearly  conferred  by  the  constitution 
and  laws  of  this  state.  Nor  is  there  any  division  of  sentiment  in  re- 
gard to  the  operation  of  the  law  of  1847,  ^Y  which  the  county  seat 
of  Washington  county  was  located  at  the  village  of  Port  Washington 
for  a  period  of  five  years.  There  cannot  be  two  separate  and  dis- 
tinct locations  at  one  and  the  same  time ;  nor  can  there  be  a  right  of 
reverting  or  returning  to  a  former  location,  without  an  express  law 
to  that  effect.     In  this  case  there  is  none. 

The  act  of  1847  operated  as  an  abrogation  of  all  previous  acts  on 
that  subject,  and  when  the  term  of  five  years  expires  there  will  be  no 
established  location  of  the  county  seat  of  W^ashington  county. 

It  will  be  the  duty  of  the  legislature,  on  the  happening  of  that 
event,  to  provide  by  law  for  the  establishment  of  a  new  location,  and 
that  can  be  done  without  any  conflict  with  the  provision  of  the  con- 
stitution regulating  the  removal  of  county  seats.  But  until  the  legis- 
lature shall  make  some  additional  statutory  provision  touching  the 
permanent  or  temporary  location  of  the  county  seat,  it  must  be  re- 
garded as  fixed  at  Port  Washington.     §  8,  art.  13,  Const. 

The  main  objection  to  the  allowance  of  the  writ  prayed  by  the  re- 
lator arises  from  the  vagueness  and  uncertainty  of  the  law  prescrib- 
ing the  duty  of  the  respondents. 

The  board  of  supervisors  were  required,  on  the  first  Monday  of 
May,  1850,  to  "proceed  to  let,  to  the  lowest  bidder,  the  contract  for 
the  erection  of  a  good  and  commodious  court-house."  No  provision 
is  made  for  advertising  or  obtaining  proposals,  and  it  might  well 
have  happened  that  there  would  be  no  bidders,  in  which  case  the  re- 
spondents could  not  have  let  the  contract  in  the  manner  required  by 
law.  Nor  was  there  any  provision  made  for  the  purchasing  or  ob- 
taining a  site  for  the  county  buildings ;  and  it  would  seem  to  me  to 
be  unreasonable,  if  not  impracticable,  to  compel  a  board  of  super- 
visors to  contract  for  the  erection  of  a  court-house,  jail,  and  clerk's 
office,  without  naming  any  place  or  lot  for  their  location,  and  when 
it  is  not  known  where  in  fact  they  were  to  be  erected. 


8  STATE  V.  SUPERVISORS  OF  WASHINGTON  CUUXTV.  §     I 

But  1  have  a  much  greater  difficulty  with  another  clause  of  the 
act.  The  respondents  are  required  to  enter  into  a  contract  for  the 
erection  of  a  good  and  commodious  court-house,  "upon  the  plan  and 
style  generally  adopted  by  the  different  counties  of  this  state."  There 
is  no  criterion  that  I  am  aware  of,  by  which  to  determine  what  is 
the  "plan  and  style  generally  adopted  by  the  different  counties  of 
this  state/'  in  the  erection  of  their  court-houses.  It  is  believed  that 
there  are  no  two  court-houses  in  the  state  that  are  alike  in  their  form, 
material,  dimensions  and  arrangements.  Every  member  of  the 
board  of  supervisors  might  have  his  individual  opinion,  and  main- 
tain with  equal  sincerity,  that  his  plan  and  style  approached  the  near- 
est to  the  "plan  and  style  generally  adopted."  And  the  members  of 
this  court  might  be  equally  variant  in  their  own  views  upon  the  sub- 
ject. 

It  is  ciear,  therefore,  to  my  mind,  that  there  is  not,  in  this  case, 
on  the  part  of  the  relator,  a  specific  legal  right  to  be  enforced,  nor, 
on  the  part  of  the  respondents,  a  positive  duty  to  be  performed,  and 
one  that  can  be  performed. 

While,  therefore,  in  a  case  wherein  the  facts  were  such  as  to  jus- 
tify the  awarding  of  a  writ  of  mandamus,  this  court  would  not  hesi- 
tate to. interpose  its  authority  to  compel  any  individual  or  public  bod} 
to  discharge  a  duty,  or  perform  an  act  required  by  law,  I  am  satisfied 
that  this  is  not  one  in  which  it  would  be  safe  or  proper  to  exercise 
such  authority. 

The  writ  must  be  denied. 

Dissenting  opinion  by  Stow,  C.  J.,  having  no  bearing  on  the  ques- 
tion of  discretion  in  issuing  the  writ,  is  omitted. 

See  also  Tarver  v.  Commissioners,  etc.,  17  Ala.  527;  Ex  parte  Good.  19 
Ark.  410;  Pock  v.  Booth,  42  Conn.  271;  McCoy  v.  State  (Del.),  36  Atl.  81; 
People  V.  Masonic  Ass..  98  111.  635;  State  v.  Trustees,  etc.,  114  Ind.  389; 
Koscnlliall  v.  State  Board,  etc.  (Kan.),  32  Pac.  129;  Shine  v.  Kentucky,  etc., 
K.  Co..  S5  Ky.  177;  Townes  v.  Nichols,  73  Me.  515;  Att'y  Gen.  v.  New  Bed- 
ford, 128  Mass.  312;  Looniis  v.  Rogers  Township,  53  Mich.  135;  State  Board 
of  ICducatinn  v.  West  Point,  50  Miss.  638;  Williams  v.  Judge,  etc..  27  Mo. 
225;  Huise  V.  Marshall,  9  Mo.  Ap.  148;  State  v.  Kinkaid,  23  Neb.  641;  Eliza- 
beth V.  County  Court,  49  N.  J.  L.  626;  People  v.  Ea.ston,  13  Abb.  Pr.  N.  S. 
(N.  Y.)  159:  State  v.  Justices,  2  Ircd.  L.  (N.  Car.)  430;  People  v.  Hoyt,  66 
N.  Y.  606 ;  Dulton  v.  Hanover,  42  Ohio  St.  215;  Easton  v.  Lehigh  Water  Co., 
07  Pa.  St.  554;  Sweet  v.  Conley  (R.  I.),  39  Atl.  326;  State  v.  County  Cnmmis- 
"-ioncrs  (S.  Car.),  9  S.  E.  692;  Depoyster  v.  Baker,  89  Tex.  155;  Free  Press 
Ass.  V.  Nicliols,  45  VcrnK)nt  7;  Milliner's  Adm.  v.  Harrison,  32  Gratt.  (Va.) 
422;  rniterl  States  v.  liank  of  Alexandria,  1  Cranch   (U.  S.)  7. 


§     I  .MANDAML'S,     IN     (nCNEKAI..  9 

5.     Discretion  in  granting  the  writ. 

EFFINrjTAM  i-:t  al.  v.  ITA^IILTON. 
1891.     Supreme  Court  of  Mississippi.     68  Aliss.  523,  10  So.  39, 

Appeal  from  circuit  court,  Holmes  county ;  Campbell,  Judge. 

Mandamus  by  Effingham,  Maynard  &  Co.  to  compel  G.  T.  Hamil- 
ton, superintendent  of  schools  of  Holmes  county,  to  sign  a  contract 
with  petitioners  for  supplies  of  books  for  the  public  schools.  Act 
Miss.,  February  22,  1890,  Laws,  p.  86,  provides  that  a  committee  of 
teachers  shall  be  appointed  in  each  county  of  the  state  to  select  a 
uniform  series  of  text  books  for  the  schools ;  and  that,  after  the 
committee  has  made  a  selection,  it  shall  be  the  dvity  of  the  county 
superintendent  to  enter  into  contract  with  the  publishers  for  supplies 
of  such  books.  The  committee  appointed  in  Holmes  county  selected 
the  books  of  the  petitioners,  but  the  superintendent  refused  to  sign 
the  contract  required  by  the  statute.  From  an  order  sustaining  a 
demurrer  to  the  petition,  the  petitioners  appeal.    Affirmed. 

Campbell,  J. — Upon  the  facts  stated  in  the  petition  before  us,  and 
which  upon  demurrer  must  be  taken  as  true,  the  right  of  the  peti- 
tioners to  have  a  contract  made  with  them  by  the  defendant,  and  to 
have  their  books,  selected  by  the  committee  on  the  6th  of  October, 
taught  in  the  public  schools  of  Holmes  county,  is  indisputable.  The 
refusal  of  the  defendant  to  contract  with  them,  as  required  by  law, 
is  wholly  indefensible.  He  had  no  discretion  about  it.  His  plain 
duty  w-as  to  proceed  to  contract,  in  pursuance  of  the  action  of  the 
committee,  and  then  "to  see  that  only  the  adopted  text-books  are 
used"  in  the  schools ;  and.  if  this  were  a  matter  afifocting  only  the 
parties  to  this  action,  there  could  not  be  a  doubt  of  the  right  of  the 
petitioners  to  compel  a  performance  of  his  official  duty  by  the  de- 
fendant in  the  matter  wherein  they  have  a  pecuniary  interest.  But 
it  is  not  in  every  case  of  clear  legal  right,  and  the  absence  of  a  sitifi- 
cient  legal  remedy,  and  where,  therefore,  mandamus  is  an  appro- 
priate remedy,  that  it  zvill  be  issued.  If  is  settled  by  numerous  de- 
cisions that  a  sound  judicial  discretion  is  to  be  used,  and,  zvliere  cir- 
cumstances make  it  uniVise  and  inexpedient  to  allow  this  writ,  to  re- 
fuse it  ivhen  sought  to  enforce  a  merely  private  right.  14  Amer.  & 
Eng.  Ency.  Law,  97,  and  cases  cited ;  State  v.  Board,  24  Wis.  683 ; 
People  V.  Board,  27  N.  Y.  378.  We  are  therefore  called  on  to  con- 
sider the  situation,  and  determine  the  propriety  of  refusing  the  writ. 
The  petition  shows  that  for  some  reason,  after  the  action  bv  the 
committee  to  .select  text-books  on  October  6th.  and  its  dissolution, 
the  state  board  of  education  (assuming,  as  its  order  shows,  that  the 
text-book  committee  of  Holmes  county  at  their  meeting  on  October 
6th,  1890,  failed  to  adopt  a  complete  list  of  books  for  use,  etc.)  di- 


lO  EFFINGHAM   FT  AL.   V.   HAMILTON.  §     I 

rected  the  defendant  to  reconvene  the  committee  to  supply  the  omis- 
sion, and,  acting  upon  this,  he  attempted  to  reconvene  the  committee, 
and  appointed  others  to  take  the  places  of  those  who  refused  to  meet 

again;  and  at  a  meeting  of  the  committee  thus  constituted  (consist^ 

ing  of  some  of  the  former  committee  and  some  substitutes),  on  No- 
vember 8th,  there  was  a  revocation  of  the  former  action  as  to  the 
books  published  by  the  petitioners  and  a  selection  of  others,  and  in 
pursuance  of  this  action  the  books  of  other  publishers  have  been  con- 
tracted for  and  introduced  into  the  schools,  and  are  being  taught. 
We  are  thus  informed  that  a  committee  claiming  the  right  to  act  has 
revoked  former  action  on  which  the  right  of  the  petitioners  is 
founded,  and  that  its  action  has  been  carried  out  so  far  as  to  result 
in  a  contract  with  other  publishers  whose  publications  have  been  in- 
troduced into  the  schools.  The  patrons  of  the  school  have  gone  to 
the  expense  of  procuring  the  books,  as  we  must  assume,  and  the 
teachers  are  required  by  the  superintendent  of  education  to  teach 
these  books,  and  have  no  discretion  about  it.  In  view  of  these  com- 
plications, and  the  evil  consequences  likely  to  arise  affecting  public 
interest,  we  deem  it  proper  to  deny  the  remedy  sought.  It  is  to  be 
remembered  that  the  object  of  the  law  providing  for  the  selection  of  a 
uniform  series  of  text-books  for  the  public  schools,  and  of  all  its 
provisions,  was  for  the  benefit  and  protection  of  the  people,  and  not 
of  book  publishers ;  and,  while  they  may  acquire  rights,  and  be  en- 
titled to  their  enforcement  and  protection  in  proper  cases,  they  must 
be  subordinated  to  the  public  interest  as  to  the  particular  remedy 
here  invoked.    Affirmed. 

In  Wisconsin  and  Connecticut  the  rule  has  been  laid  down  that  the  court 
may  exercise  its  discretion  in  cases  where  the  writ  is  soup:ht  in  aid  of  pri- 
vate rights,  hut  where  it  is  invoked  on  behalf  of  the  state,  it  issues  ex  dehito 
justitiae.  State  v.  Doyle,  40  Wis.  220;  New  Haven,  etc.,  Co.  v.  State,  44 
Conn.  390. 

See  also,  on  subject  of  discretion  in  granting  or  refusing  the  writ:  Reg.  v. 
-All  Saints,  35  L.  T.  N.  S.  (Eng.)  381;  Union,  etc.,  Ry.  Co.  v.  Hall,  91  U.  S. 
343 ;  Maddox  v.  Neal,  45  Ark.  121 ;  Chesebro  v.  Babcock,  59  Conn.  217 ; 
\Vcidwald  v.  Dodson,  95  Cal.  450;  People  v.  Highway  Com'rs,  4  111.  App.  391; 
Chance  v.  Temple,  i  la.  179;  Bd.  of  Education  v.  Spencer,  52  Kas.  574;  Daniel 
V.  Warren  Co.,  i  Bibb  (Ky.)  499;  Davis  v.  York  Co.,  63  Mc.  396;  Osborne  v. 
I.indnw,  78  Mich.  606;  State  v.  Ass.  Press,  159  Mo.  410;  People  v.  Newton, 
126  N.  Y.  656;  State  v.  Shaw,  43  Ohio  St.  324;  State  v.  Burnell,  104  Wis.  246. 


§    I  MANDAMUS,    IN    GENERAL.  II 

6.     Not  granted  if  there  is  another  adequate  remedy. 
SULLIVAN  V.  ROBBINS. 
1899.     Supreme  Court  of  Iowa.     109  Iowa  235,  80  N.  W.  340. 

Deemer,  J. — The  petition  and  amendment  thereto  disclose  that  a 
certain  highway  in  Mahaska  county,  which  was  duly  established 
more  than  thirty  years  ago,  is  and  was  so  obstructed  so  as  to  be  im- 
passable, and  that  defendant  was  duly  notified  before  the  commence- 
ment of  the  action  to  remove  the  said  obstructions,  but  that  he  had 
failed  and  neglected  to  do  so.  It  also  appears  that  the  board  of 
supervisors,  on  a  petition  signed  by  plaintiff  and  others,  vacated  a 
part  of  the  road  which  plaintiff  says  is  obstructed,  and  reduced  the 
remainder  from  50  to  30  feet  in  width.  The  petition  alleges  that 
plaintiff's  signature  to  the  petition  asking  for  the  vacation  and  re- 
duction of  the  road  was  obtained  through  fraud,  and  that  the  action 
of  the  board  was  illegal,  ( i )  because  no  road  can  be  reduced  to  less 
than  40  feet  in  width ;  (2)  because  no  petition  or  bond  was  filed  with 
the  county  auditor,  and  no  commissioner  was  appointed  to  examine 
into  the  expediency  of  the  proposed  vacation,  and  no  report  was  ever 
filed  with  the  county  auditor;  (3)  because  no  notice  was  ever  served 
upon  adjoining  landowners;  and  (4)  because  no  notice  of  the  hear- 
ing was  given  to  any  person  whatever.  The  demurrer  was  based 
upon  several  grounds,  some  of  which  were  that  this  is  a  collateral 
attack  upon  the  action  of  the  board ;  that  the  proper  remedy  is  by 
certiorari  and  not  by  mandamus ;  and  that  the  board  of  supervisors 
have  exclusive  jurisdiction  of  the  highways  In  their  county. 

It  will  thus  be  seen  that  this  is  an  attack  upon  the  action  of  the 
board  in  vacating  the  highway.  The  statute  provides  that  boards  of 
supervisors  have  general  supervision  of  the  roads  in  their  counties, 
with  power  to  establish,  vacate  and  change  the  same.  It  appears 
that  a  petition  asking  for  the  vacation  of  the  road  was  duly  presented 
to  the  board,  and  that  it  granted  the  petitioners'  request.  True,  no 
bond  was  filed,  but  that  fact  Avill  not  invalidate  the  proceedings. 
Woolsey  v.  Board,  32  Iowa  130. 

It  also  appears  that  a  part  of  the  road  was  altered  so  as  to  be  less 
than  40  feet  in  width,  but  that  it  is  not  such  an  irregularity  as  can 
be  taken  advantage  of  in  a  collateral  proceeding.  Knowles  v.  Mus- 
catine, 20  Towa  248. 

That  plaintiff  was  induced  to  sign  the  petition  for  vacation 
through  fraud  is  no  reason  for  declaring  the  action  of  the  board 
void.  Indeed,  the  only  fraud  alleged  is  that  he  was  misled  into  sign- 
ing the  petition  because  he  believed  it  pertained  to  some  other  road. 


12  SULLIVAN    V.    ROEBINS.  §    I 

Surely  this  is  not  a  ground  of  collateral  attack  upon  the  action  of  the 
board. 

It  is  true  that  no  commissioner  was  appointed  to  pass  upon  the  ex- 
pediency of  the  proposed  vacation,  but  as  the  plaintiff  and  all  par- 
ties in  interest,  so  far  as  disclosed  by  the  record,  signed  the  petition, 
they  are  in  no  position  to  complain.  A  commissioner  was  appointed 
to  make  the  survey  of  the  new  road  established  in  lieu  of  the  old, 
and  he  made  a  survey  and  made  his  report. 

The  notice  required  by  Section  1495  *^f  ^^^  Code  is  for  the  purpose 
of  giving  the  owners  of  land  living  along  or  abutting  on  said  road 
an  opportunity  to  object  to  the  establishment  or  vacation  thereof,  or 
to  present  their  claims  for  damages.  As  plaintiff  had  signed  the 
petition,  no  notice  to  him  w'as  required,  unless  it  be  for  the  purpose 
of  presenting  a  claim  for  damages.  But  he  does  not  say  in  his  peti- 
tion that  he  had  any  claim.  Indeed,  it  would  seem  that  he  has  no 
basis  for  such  a  claim  for  the  vacation  of  the  road.  Grove  v.  Allen, 
92  Iowa  519,  61  N.  W.  175 ;  McKinney  v.  Baker,  100  Iowa,  362,  69 
N.  W.  683.  Again,  there  is  no  such  showing  in  the  petition  as  would 
require  the  giving  of  notice.     McKinney  v.  Baker,  supra. 

The  clamr  that  no  petition  was  filed  for  the  vacation  of  the  road 
is  without  merit.  Indeed,  plaintiff's  petition  alleges  that  it  is  the 
road  which  he  seeks  to  have  opened  which  was  vacated.  If  there 
were  no  such  allegation,  we  think  it  clearly  appears  from  the  whole 
record  that  it  is  the  same  road. 

The  policy  or  expediency  of  the  alleged  vacation  cannot  be  con- 
trolled by  action  of  mandamus.  From  what  has  been  said,  it  appears 
that  none  of  the  irregularities  complained  of  go  to  the  jurisdiction  of 
the  board  to  make  the  order.  If  that  tribunal  acted  illegally,  certio- 
rari is  the  j^roper  remedy.  McCrary  v.  Griswold,  7  Iowa  248;  Tiedt 
v.  Carstensen,  61  Iowa  334,  16  N.  W.  214.  The  statute  provides 
that  mandamus  shall  not  issue  in  any  case  where  there  is  a  plain, 
speedy  and  adequate  remedy  in  the  ordinary  course  of  law.  Code, 
4344,  Section  4154  of  the  Code  provides  that  the  remedy,  in  cases 
wlicn  an  inferior  board  exercising  judicial  functions  has  exceeded  its 
jurisdiction,  or  is  otherwise  acting  illegally,  is  by  certiorari.  Abney 
V.  Clark,  87  Iowa  y2y,  55  N.  W.  6;  Moffit  v.  Brainard,  92  Iowa  122, 
Ck)  j\.  W.  226;  Stubenrauch  v.  Ncyenesch,  54  Iowa  567,  7  N.  \V.  i  ; 
Rockwell  v.  Bowers,  88  Iowa  88,  55  N.  \V.  i  ;  McLachlan  v.  Gray. 
105  Jowa  259,  74  N.  W.  773.  It  is  clear  that  plaintiff  cannot  collat- 
erally atlack  the  action  of  the  board  of  supervisors  in  vacating  the 
hi;/hway,  bv  action  of  mandamus.    Affirmed, 


§     I  MANDAMUS,    IN     GENERAL.  I3 

STATE  EX  REL.  BETTS  Er  al.  v.  MEGOWN. 

1886.       SUIM<EMK  COLRT  OF  MISSOURI.       89  Mo.    I56.    I    S.   W.   2o8. 

Sherwood,  J. — There  are  two  reasons  why  the  circuit  court  prop- 
erly refused  to  grant  the  peremptory  writ  to  compel  the  probate 
court  to  grant  the  letters  de  bonis  non. 

I.  Mandamus  will  not  lie  to  control  the  judgment  or  discretion 
of  an  inferior  court ;  for  this  in  effect  would  be  to  substitute  the 
opinion  gf  the  superior  for  that  of  the  inferior  court.  Barksdale  v. 
Cobb,  16  Ga.  13;  High  Ex.  Legal  Rem,,  §§  156,  171,  176. 

II.  Mandamus  will  not  lie  in  this  instance  because  relator  has 
other  and  specific  remedy  by  appeal.  The  existence  of  such  a  rem- 
edy bars  the  exercise  of  jurisdiction  by  mandamus ;  for  such  a  writ 
is  not  to  usurp  the  functions  of  a  writ  of  error  or  appeal,  or  to  cor- 
rect errors  that  may  he  corrected  in  that  way.  High  Ex.  Legal 
Rem.,  §  188.  And  the  status  of  the  case  would  not  be  affected  if  the 
judgment  of  the  inferior  court  was  manifestly  erroneous,  if  the 
question  passed  upon  was  within  the  jurisdictional  powers  of  the 
court  adjudicating  upon  it.  lb.  §  189.  Of  its  jurisdiction  there  can 
be  no  doubt.  And  in  this  case  the  right  and  remedy  of  appeal  do 
exist.  Revised  Statutes,  section  292,  is  ample  in  its  provisions  for 
an  appeal,  and  there  has  been  a  final  decision  of  the  matter  by  the 
probate  judge. 

The  result  is  that  the  judgment  should  be  affirmed.  Affirmed, 
All  concur. 


PEOPLE  V.  SUPERMSORS  OF  GREENE. 

1851.     Supreme  Court  of  New  York.     12  Barb.  (N.  Y.)  217. 

Motion  for  a  peremptory  mandamus.  On  the  21st  of  November, 
1 85 1,  an  alternative  mandamus  was  granted,  at  a  special  term,  di- 
rected to  Rufus  H.  King,  supervisor  of  the  town  of  Catskill,  Geo.  S. 
Nichols,  supervisor  of  the  town  of  Athens,  and  to  the  supervisors  of 
the  several  other  towns  in  the  county  of  Greene,  by  name,  reciting 
that  they,  as  the  board  of  county  canvassers,  had  illegally  and  un- 
justly rejected,  in  making  their  canvass,  the  original  statement  of 
the  canvass  in  the  third  election  district  in  the  town  of  Catskill,  and 
h.ad  illeofally  and  unjustly  refused  to  count  and  canvass  the  votes  of 
that  district,  and  had  therefore  caused  to  be  made  and  recorded 
false  statements  of  the  results  of  the  election  in  the  county  of  Greene, 
and  had  therefore  unjustly  determined,  among  other  things,  that  Ly- 
man Tremain  was  duly  elected  to  the  office  of  county  judge,  to  the 


14  PEOPLE  V.  SUPERVISORS  OF  GREENE.  ^  I 

grievous  wrong  of  the  relator,  who  should  have  been  declared  to  be 
elected,  and  commanding  them,  and  each  and  every  of  them,  "to 
meet  at  the  office  of  the  clerk  of  the  county  of  Greene,  on  the  28th 
of  November,  1851,  at  one  o'clock  p.  m.,  or  at  an  earlier  day  if  they 
should  elect  so  to  do  and  to  then  and  there  to  reorganize  the  said 
board  of  county  canvassers  and  correct  the  estimates  of  the  votes 
of  said  county,  and  the  several  statements  and  determinations  made 
thereupon  by  the  said  board,  by  allowing,  counting,  canvassing  and 
estimating  the  votes  as  contained  in  the  original  statements  of  the 
canvas  in  said  election  district  number  three,  in  said  town  of  Catskill, 
produced  to  them,  and  including  the  same  in  their  estimate  of  the 
votes  of  the  county  of  Greene,  and  in  their  statements  made  there- 
upon, and  that  they  deliver  to  the  clerk  of  the  county  such  corrected 
statements,  properly  certified  and  attested,  as  required  by  law,  to  be 
recorded  by  him,  and  that  thereupon  they  correct,  in  accordance  with 
such  corrected  statements,  the  determinations  theretofore  made  by 
them,  the  said  board,  as  to  the  person  or  persons  duly  elected  to  any 
county  office,  by  the  greatest  number  of  votes,  or  that  they  show 
cause  to  the  contrary,  before  the  justices  of  the  supreme  court,  at 
the  capitol,  in  the  City  of  Albany,  on  the  first  Monday  of  December, 
then  next,  at  a  general  term  of  the  court,  then  and  there  to  be  held, 
lest  complaint  should  again  come,"  &c.  The  writ  was  served  by  de- 
livering a  copy  "to  each  of  the  supervisors  personally,  at  the  town  in 
which  he  resides,  and  showing  to  each  the  original  writ  under  the 
seal  of  the  court." 

On  the  return  day  of  the  writ,  the  defendant's  counsel,  without 
making  a  return,  objected  to  the  allowance  of  a  peremptory  man- 
damus, upon  several  grounds,  which  are  sufficiently  stated  in  the 
opinion  of  the  court. 

By  the  court,  Harris,  J. — The  first  inquiry  that  presents  itself,  in 
the  consideration  of  the  case,  is,  whether,  assuming  the  facts  to  be 
as  stated  by  the  relator,  they  furnish  proper  grounds  for  the  inter- 
ference of  the  court  by  mandamus.  The  general  rule  is  that,  when 
the  subject  matter  is  within  its  control,  this  court,  as  the  general 
guardian  of  public  rights,  and  in  the  exercise  of  its  authority  to  grant 
the  writ,  will  render  it,  as  far  as  it  can,  the  means  of  substantial  jus- 
tice in  every  case  where  there  is  no  other  specific  legal  remedy  for  a 
legal  right,  and  will  especially  provide,  as  effectually  as  it  can,  that 
all  official  duties  be  fulfilled.  Tapping  Mand.  9;  III  Blackstone  1 10. 

77n'  object  of  the  ivrit  is,  not  to  supersede  lei^al  remedies,  but  to 
supply  the  want  of  them.  The  only  ground  for  its  allowance  is  that, 
with' Hit  it,  there  would  be  a  defect  of  justice.  Though  it  issues  in 
the  name  of  the  people,  it  is  substantially  a  civil  remedy,  granted  to 
the  relator.  To  entitle  him  to  this  remedy,  two  things  must  appear ; 
first,  that  he  has  a  lei^al  r{(;ht  to  have  somethiu_^  done  by  the  party 
to  whom  he  seeks  to  have  the  writ  directed,  and  zvhich  lias  not  been 


§    I  MANDAMUS,    IN     GENERAL.  I5 

done;  and,  secondly,  that  he  has  no  specific  legal  remedy  to  zvhicli 
he  can  resort  to  compel  the  performance  of  this  duty. 

Guided  by  these  principles,  let  us  examine  the  case  as  it  is  pre- 
sented upon  the  face  of  the  alternative  mandamus.  The  board  of 
canvassers  illeg^ally  and  unjustly  omitted  to  count  the  votes  of  the 
third  election  district  of  the  town  of  Catskill.  The  relator  had  a 
legal  right  to  have  these  votes  counted ;  the  board,  therefore,  omitted 
to  do  an  act  which  they  ought  to  have  done.  There  has  been  an 
omission  to  perform  an  official  duty.  For  this  omission,  the  relator 
ought  to  have  a  remedy,  and  if  no  other  remedy  exists,  and  the  par- 
ties to  whom  the  writ  is  directed  can  yet  perform  the  duty,  he  ought 
to  have  a  mandamus.  If,  on  the  other  hand,  the  defendants  cannot 
now  perform  the  duty,  even  though  they  have  erred  in  not  counting 
the  votes,  the  relator  must  look  for  some  other  remedy.  A  man- 
damus, if  granted,  would  be  unavailing. 

The  county  board  of  canvassers,  except  in  certain  specified  cases, 
is  composed  of  the  supervisors  of  the  several  towns  in  the  county. 
The  alternative  mandamus  assumes  that  the  defendants,  being  such 
supervisors,  constitute  said  board.  This  is  not  necessarily  the  case : 
but  I  will  consider  the  question  upon  the  assumption  that  this  is  so. 
The  board  met  on  the  Tuesday  following  the  election,  and  organ- 
ized according  to  law.  It  then  proceeded,  though  illegally  and  im- 
properly, as  it  is  alleged,  to  estimate  the  votes  of  the  county  and  to 
make  the  statements  prescribed  by  the  statute.  They  also  proceeded 
to  determine  who  had  been  elected  county  officers.  This  determina- 
tion, it  may  be  assumed,  was  erroneous.  But  it  was  made,  and  a 
copy  of  the  statements  upon  which  it  was  made  has  been  published. 
It  has  been  filed,  and  has  become  a  matter  of  record.  The  board 
has  dissolved.  Were  the  same  individuals  again  to  convene,  thev 
would  not  again  constitute  the  county  board  of  canvassers.  No 
statute  authorizes  such  second  assembling,  or  prescribes  its  mode  of 
organization.  If  convened  and  organized,  it  would  have  no  legal  au- 
thority to  review  its  former  acts  or  correct  its  errors.  When  the 
board  deposited  with  the  clerk  the  result  of  its  canvass,  and  declared 
who  were  elected  to  office,  and  publislied  that  result  and  determina- 
tion, all  its  powers  were  expended.  If  it  had  erred,  the  errors  must 
be  corrected  by  some  other  tribunal.  The  law  has  withheld  from  it 
the  power  of  reviewing  its  own  determinations. 

But  suppose  the  supervisors  to  reassemble  and  to  assume  the  office 
of  recanvassing  the  votes  of  the  county.  They  have  already  de- 
termined that  Lyman  Tremain  is  elected  to  the  office  of  county 
judge.  If  they  should  obey  the  mandamus,  they  might  make  a 
new  statement  and  determination,  showing  that  the  relator  is  elected. 
The  object  of  granting  the  writ  of  mandamus  is,  as  we  have  seen, 
to  provide  an  efficacious  remedy  to  the  relator,  so  as  to  prevent 
a  failure  of  justice.     Of  what  advantage  would   such  a  determi- 


l6  PEOPLE  V.  SUPERVISORS  OF  GREENE.  §  I 

nation,  made  under  such  circumstances,  be  to  the  relator?  The 
result  would  undoubtedly  be.  as  now,  that  both  parties  claim  to 
be  elected  county  judge ;  both  would  take  the  requisite  oath  of  office, 
and  assume  its  duties,  and  the  controversy,  then  as  now,  would 
only  be  determined  by  an  action  in  the  nature  of  a  quo  warranto. 
Such  a  revision  of  the  canvass,  therefore,  if  practicable,  would 
produce  no  beneficial  result,  even  to  the  relator  himself.  Instead 
of  being  an  efficacious  remedy,  the  writ,  in  its  operation  would 
be  wholly  abortive.  \Mien  it  can  be  foreseen  that  this  must  be  the 
result,  the  writ  should  not  be  granted.  "Lex  non  cogit  ad  titilia." 
"The  court  will  refuse  the  writ,"  says  Tapping,  "  if  it  be  manifest 
that  it  would  be  vain  and  fruitless,  or  cannot  have  a  beneficial 
effect,"  Tapping  Mand.  17.  I  am  of  the  opinion,  therefore,  that, 
assuming  the  board  of  canvassers  erred  in  rejecting  the  votes  of  the 
third  election  district  of  the  town  of  Catskill,  it  is  now  too  late  for 
the  canvassers  to  correct  the  error.  The  matter  has  passed  beyond 
their  jurisdiction  or  control.  If  the  defendants,  moved  by  the 
command  of  this  court,  or  otherwise,  should  undertake  such  correc- 
tion, their  action  would  be  wholly  ineffectual  for  the  purposes  for 
which  the  relator  seeks  to  enforce  it.  Nothing  short  of  a  quo  war- 
ranto action  can  determine  his  right  to  the  office. 

I  will  not  say  that  a  state  of  facts  might  not  occur  which  would 
call  upon  the  court  to  interfere  by  mandamus  to  control  the  action 
of  a  board  of  canvassers,  but  this  can  only  be  done  when  such  board 
is  in  existence.  And  even  then,  the  nature  of  the  duties  to  be  dis- 
charged by  it  is  such,  that  it  can  rarely  be  expedient  or  practicable 
thus  to  interfere.  lUit,  when  the  board  having  performed  the  office 
for  which  it  was  constituted,  whether  legally  or  not,  has  been  dis- 
solved, it  is  incapable  of  being  reanimated.  Any  act  it  should  at- 
tempt to  perform,  even  though  it  be  done  in  obedience  to  the  man- 
date of  this  court,  would  be  extra-official  and  nugatory. 

Xor  does  the  relator  need  this  writ.  He  has  another  and  a 
more  efficacious  remedy,  I  agree  with  him,  that  it  is  not  an  an- 
swer to  an  application  for  a  mandanuis  to  show  that  some  other 
remedy  exists  against  some  other  party.  It  would  not,  of  itself, 
be  en(jugh  for  the  defendants  to  show  that  the  relators  can  obtain 
rf'licf  by  q]to  warranto  against  the  person  whom  they  have  declared 
tf^  be  elected.  This  princi])le  only  prevails  when  sucli  other  rem- 
edy is  attainable  against  the  same  party  to  whom  it  is  sought  to 
have  the  mandamus  directed.  I  prefer  to  put  the  refusal  to  grant 
the  writ  upf)n  the  ground  that  it  is  inappropriate  and  ineffectual, 
and  (hat,  by  williholding  it,  we  do  not  leave  the  relator  without 
an  appropriate  and  effectual  remedy. 

The  aticicnt  and  appropriate  proceeding  to  try  tlie  right  and  title 
to  all  fiffires,  says  a  very  learned  judge,  was  under  the  writ  of 
quo  warranto;  and  that  where  a  legal  question  was  involved,  this 
was  the  only  mrxlc  of  detfrmining  it.      I'.v   the  Revised    Statutes, 


§    I  MANDAMUS,    IN    GENERAL.  I7 

this  old  remedy  is  not  only  preserved,  but  rendered  more  expe- 
ditious and  manageable,  and  it  is  declared  to  be  especially  appli- 
cable, "when  any  person  shall  usurp,  intrude  into,  or  unlawfully 
hold  or  exercise  any  public  office/'  (2  R.  S.  581,  §  28.  See  also 
Code  of  185 1,  §  432.)  "Provision  is  made  for  the  determination 
of  issues  of  law  and  fact.  The  right  of  trial  by  jury,  so  vital  to 
the  due  decision  of  the  latter,  is  expressly  maintained  and  declared. 
This,  then,  is  emphatically  the  constitutional  mode  of  proceeding 
for  the  trial  of  the  title  to  offices."  (The  People  v.  Stevens,  5  Hill 
( N.  Y.)  631,  n.  a,  per  Kent,  C.  Judge.) 
The  motion  for  a  peremptory  mandamus  must  therefore  be  denied. 

In  accord:  People  v.  Corporation  of  N.  Y.,  3  Johns.  Cas.  (N.  Y.)  79; 
Bonner  v.  State,  7  Ga.  473 ;  State  v.  Rodman,  43  Mo.  256 ;  State  v.  Gasconade 

Co.   Ct.,  25   Mo.   Ap.  446;   Anderson  v.   Colson,    i    Neb.    172;    Rex   v.   

7  Ad.  &  El.  419;  Rex  v.  Phippen,  7  Ad.  &  EI.  966. 

A  different  rule  appears  to  obtain  in  jMassachusetts.  See  Luce  v.  Board  of 
Examiners,  153  I\Iass.  108;  Keough  v.  Board  of  Aldermen,  156  Mass.  403.   ' 


KING  WILLIAM  JUSTICES  v.  MUNDAY. 
1830.     Court  of  Appeals  of  A'irginia.     2  Leigh  (A"a.)    165. 

An  order  was  made  by  the  county  court  of  King  William,  ap- 
pointing three  commissioners  "to  meet  and  confer  with  commis- 
sioners appointed  by  the  county  court  of  King  and  Queen,  and 
agree  on  the  manner  and  condition  of  executing  a  bridge,  to  be 
erected  across  the  Mattapony  River  from  the  land  of  J.  K.  in 
King  and  Queen  to  the  land  of  J.  H.  in  King  William."  But,  when 
this  order  was  made,  there  were  only  five  justices  on  the  bench,  out 
of  seventeen,  who  were  in  the  commission  of  the  peace  for  the 
county ;  and  no  order  had  been  made  or  entered  of  record,  at  a 
previous  term,  signifying  the  intention  of  making  the  above  or  any 
other  order  on  the  subject,  and  directing  the  sherifif  to  summon 
the  justices  of  the  county  to  attend  at  the  next  term  for  the  purpose. 

The  commissioners  reported  to  the  county  court  of  King  William, 
that  in  conformity  with  the  orders  of  the  two  county  courts,  thev 
had  let  the  building  of  the  bridge  across  the  Alattapony,  to  be  kept 
in  repair  for  seven  years,  to  B.  H.  Munday  for  the  sum  of  $500.00 ; 
and  that  the  undertaker  had  built  the  bridge,  according  to  the  con- 
tract of  the  clerk  of  the  county  court  of  King  and  Queen,  and  had 
given  bond  with  surety  for  keeping  the  same  in  repair  for  the  term 
aforesaid. 

Munday,  the  undertaker,  applied  to  the  county  court  of  King 
"William   (then  sitting  to  make  the  county  lew,  and  fifteen  of  the 


l8  KING  WILLIAM   JUSTICES.V.    MUNDAY.  §    I 

justices  being  on  the  bench)  to  levy  the  proportion  of  the  price 
of  the  bridge,  properly  chargeable  on  that  county,  and  to  order 
the  same  to  be  paid  to  him,  which  the  county  court  refused  to  do, 
by  a  vote  of  ten  to  five  of  the  justices  present. 

Upon  this,  Munday  applied  to  the  circuit  court  of  King  William 
for  a  mandamus  to  the  justices  of  the  county  court,  which  was  al- 
lowed, commanding  them  to  levy  the  money  for  him,  or  show  cause 
to  the  contrary. 

The  county  court  made  a  return,  in  which,  after  reciting  the 
provisions  of  the  statute,  2  Rev.  Code,  ch.  236,  §  9,  p.  237,  that 
"no  order  for  the  erection  of  any  bridge  or  bridges,  shall  be  made 
by  the  court  of  any  county,  unless  a  majority  of  the  judges  of  said 
county  shall  be  present  at  the  making  of  said  order,  or  unless  the 
court  of  such  county  shall  have  signilied  their  intention  of  makini^ 
such  order,  at  least  one  month  previous  thereto,  and  shall  have 
caused  the  same  to  be  entered  of  record,  with  directions  to  the 
sheriff  of  the  county  to  summon  the  justices  thereof  to  attend  at  the 
next  term  for  the  purpose  aforesaid ;"  the  court  showed  that  a 
majority  of  the  justices  of  King  William  were  not  present  at 
the  time  of  making  the  order  appointing  the  commissioners  on 
the  part  of  that  county,  to  meet  and  confer  with  tliose  of  King 
and  Queen,  as  to  the  building  of  the  bridge  in  question,  and  that 
no  previous  order  had  been  made  signifying  the  intention  of  making 
such  order,  and  directing  the  justices  of  the  covmty  to  be  summoned 
to  attend  for  the  purpose :  and  that  the  court  refused  to  levy  any 
portion  of  the  money  claimed  by  the  undertaker  on  the  county  of 
King  William,  (i)  because  the  order,  and  the  whole  proceedings 
were  contrary  to  the  law  and  irregular ;  and  (2)  because  no  evidence 
was  adduced  to  convince  the  court  that  the  bridge  was  or  woCild 
be  of  public  utility  and  convenience. 

Munday  demurred  generally  to  the  return,  and  the  justices  joined^ 
in  the  demurrer. 

The  circuit  court  sustained  the  demurrer  and  ordered  a  peremptory 
mandamus.  And  to  that  judgment,  this  court,  at  the  instance 
of  tlie  justices  of  the  county  court,  awarded  a  supersedeas. 

Cakr  J. — The  counsel  for  the  aj'ipcllants  took  two  objections  to 
the  proceedings:  (i)  that  a  mandamus  was  not  the  proper  rem- 
edy; (2)  that  there  should  have  been  a  majority  of  the  justices 
of  King  William  on  the  bench,  or  proof  that  they  had  been  sum- 
moned to  attend,  when  the  order  was  made  appointing  commis- 
sioners to  meet  those  of  King  and  Queen.  It  will  only  be  necessary 
to  notice  thf!  first  of  these  points,  if  it  be  decisively  settled,  that 
where  there  is  another  specific  remedy  the  mandamus  will  not 
He.  A  brief  examination  of  some  of  the  cases  will  abundantly  show 
this.  Tn  Rex  v.  Barker,  3  Hurr.  (K.  B.).  1267,  Lord  Mansfield 
said,  "A  mandamus  is  a  prerogative  writ. — Tt  ought  to  be  used  upon 
all  occasions,  where  thc!  law  has  establislied  no  specific  remedy,  and, 


§    I  MANDAMUS,    IN    GENERAL.  I9 

where  in  justice  and  good  government  there  ought  to  be  one." 
"The  value  of  the  matter,  or  the  degree  of  its  importance  to  the 
pubhc  poHce,  is  not  scrupulously  weighed :  if  there  -be  a  right,  and 
no  other  specific  remedy,  this  should  not  be  denied."  And,  in  Rex 
V.  Bank,  2  Doug.  (K.  B.),  526,  he  said,  "Where  there  is  no  specific 
remedy,  the  court  will  grant  a  mandamus,  that  justice  may  be  done." 
In  the  case  of  King  v.  Stafford,  3  T.  R.  (K.  B.),  651,  on  an  appli- 
cation for  a  rule,  to  show  cause  why  a  mandamus  should  not  issue 
to  command  the  defendant,  as  lord  of  the  manor,  to  present  to 
the  ordinary,  one  Moreton,  nominated  by  the  inhabitants  of  Willen- 
hall,  to  be  curate  of  that  chapel.  Lord  Kenyon  said,  "It  seems  as 
if  the  inhabitants  have  only  an  equitable  right.  If  so,  this  court  can- 
not interfere  at  all ;  or  if  they  have  a  legal  right,  such  right  may 
be  asserted  on  a  quare  impedit.  Therefore,  quacunque  via  data 
this  rule  must  be  discharged."  The  King  v.  Bishop,  i  T.  R.  (K.  B.), 
404;  The  King  v.  Canterbury,  8  East  (K.  B.),  213.    Rex  v.  Dean, 

2  Mau.  &  Sel.  (K.  B.),  80.  In  4  Bacon  Abr.  Mandamus,  C  P. 
506,  it  is  laid  down,  that  it  is,  in  general,  a  sufficient  reason  with 
a  court  to  refuse  a  mandamus,  that  the  party  applying  for  it  has 
another  specific  remedy ;  and  many  cases  are  quoted  in  support. 
It  seems  an  exception  to  this  general  rule,  that  the  remedy  is  ob- 
solete, or  inconvenient,  or  incomplete:  in  such  cases  the  court  ex- 
ercises a  sound  discretion  in  the  granting  or  refusing  the  writ.  In 
our  legislation,  I  find  nothing  to  change  this  settled  course  of  the 
law.  The  statute,  i  Rev.  Code,  ch.  121,  p.  471,  merely  regulates 
the  mode  of  proceeding  on  writs  of  mandamus,  without  prescribing 
when  they  shall  be  granted  or  refused.     In  Dew  v.  The  Judges, 

3  Hen.  &  M.  (Va.)  i,  the  subject  is  touched  upon,  but  only  inci- 
dentally, the  case  there  being  evidently  the  proper'  one  for  the  writ. 
The  law  being  thus  settled,  we  are  only  to  inquire,  whether  the 
petitioner  for  this  mandamus  has  a  specific  legal  remedy?  And 
this  is  answered  from  the  passage  cited  from  the  9th  section  of  the 
statute,  2  Rev.  Code,  ch.  236,  "and  all  such  contracts  made  by 
county  courts,  or  others  appointed  by  them,  shall  be  available  and 
binding  upon  the  justices  and  their  successors,  so  as  to  entitle  the 
undertaker  to  his  stipulated  reward  in  the  county  levy,  or  to  a 
recovery  thereof  with  costs,  by  action  of  debt  against  the  justices 
refusing  to  levy  the  same." 

The  other  judges  concurred,  and  the  judgment  was  reversed, 
refusing  to  levy  the  same." 

See  also  Fogle  v.  Grege:,  26  Ind.  345;  State  v.  Supervisors,  29  Wis.  70; 
Ex  parte  Mackey,  15  S.  Car.  322 ;  Marshall  v.  Sloan,  35  la.  445  ;  Louisville, 
etc.,  R.  Co.  V.  State,  25  Ind.  177;  Missouri  v.  IVIurphy,  170  U.  S.  78;  Boyne  v. 
Ryan,  100  Cal.  265,  34  Pac.  Rep.  707;  Gunning  v.  Sheahan,  73  111.  App".  118; 
Potts  V.  Tuttle,  79  la.  253,  44  N.  W.  Rep.  374 ;  Talbot  Paving  Co.  v.  Detroit, 
91  Mich.  262,  51  N.  W.  Rep.  933;  State  v.  Otero,  52  La.  Ann.  i,  26  So.  Rep. 
812;  State  v.  Ehvood,  11  Wis.  17. 


20  ]\IOBILE,   &C.,   K.   CO.,  V.   WISDOM.  §     I 

The  writ  has  been  refused  where  the  act  was  impossible  of  performance, 
where  nought  but  an  abstract  right  appeared  to  be  involved,  where  there  had 
been  an  unreasonable  delay  on  the  part  of  relator,  where  other  proceedings 
involving  the  subject  matter  were  pending  and  where  the  amount  involved 
was  relatively  insignihcant. 


^lOBILE,   &c.,  R.   CO.  V.   WISDOM. 
1871.     Supreme  Court  of  Tennessee.     5  Heiskell   (Tenn.)    125. 

Nicholson^  C.  J.  delivered  the  opinion  of  the  court. 

This  is  a  proceeding  by  mandamus  to  compel  the  Mobile  &  Ohio 
R.  R.  Company  to  receive,-  in  payment  for  freight  or  passage  on 
the  road,  certain  tax  receipts,  given  by  the  tax  collector  of  Mad- 
ison county,  Tenn.,  and  countersigned  by  the  County  Court  Clerk  of 
said  cotmty. 

The  petition  was  filed  on  the  2d  of  January,  1869,  and  exhibits 
three  tax  receipts,  amounting  in  all  tp  about  $24.00,  none  of  which 
Vv'ere  issued  to  petitioner,  nor  assigned  to  him  by  endorsement. 
He  alleges  that  he  is  the  holder  of  the  receipts  by  delivery,  and  that 
he  tendered  the  same  in  payment  for  a  ticket  from  Jackson  to  Mo- 
bile, but  tl;at  the  agent  of  the  company  refused  to  receive  them  in 
payment  for  said  ticket.  An  alternative  mandamus  issued,  requiring 
the  company  to  appear  and  show  cause  why  the  alternative  manda- 
mus should  not  be  made  absolute.  The  company  appeared  and 
moved  to  quash  the  writ,  and  assigned  various  reasons  why  the  mo- 
tion should  be  silstained.  The  Circuit  Judge  determined  that  the 
reasons  were  insufficient,  and  overruled  the  motion,  and  thereupon 
gave  judgment,  making  the  mandamus  absolute.  From  this  judg- 
ment the  company  appealed  in  error  to  tliis  court. 

We  deem  it  unnecessary  to  notice,  in  detail,  the  several  objections 
taken  to  the  petition,  for  want  of  sufficient  certainty  and  definite- 
ncss  in  its  several  allegations,  as  these  objections  are  merely  tech- 
nical, not  reaching  the  merits  of  the  case,  and  as  the  petition,  if 
insufficient  as  to  a  matter  of  mere  form,  is  amendable.  But  we  are 
satisfied  that  there  are  no  substantial  defects  in  the  averments  of 
the  petition,  and  will  proceed  to  examine  the  objections  that  reach 
the  merits  of  the  case. 

(Tlie  court  held  that  under  the  statute  such  tax  certificates  were 
transferable  liy  flelivery,  and  that  under  the  terms  of  its  charter, 
anfl  thf  subscriptions  made  in  aifl  of  the  road,  the  railroad  was  liable 
for  the  redemption  of  these  certificates.) 

T,.  It  is  next  said  that  the  writ  of  mandannis  is  not  a  writ  of 
right  and  is  not  granterj  as  a  matter  of  com'se — that  i"t  only  lies 
wlierc  the  law  has  established  no  specific  remedy,  nor  where  satisfac- 


§    I  MANDAMUS,    IN    GENERAL.  21 

tion  equivalent  to  a  specific  remedy  can  be  had.  ilcnce  it  is  inferred 
that,  as  the  petitioner  might  have  had  his  action  on  the  case  for 
damages,  therefore  he  cannot  have  the  benefit  of  the  writ  of  man- 
damus. This  argument  assumes  that  the  action  on  the  case  furnishes 
an  equivalent  satisfaction  to  a  specific  execution  of  the  obligation — 
that  is,  assuming  the  very  question  at  issue.  The  petitioner  has 
a  right,  as  he  says,  to  buy  a  railroad  ticket  to  Mobile,  and  to  pay 
for  it  with  his  tax  receipt.  The  company  say,  true,  we  are  bound 
to  receive  your  tax  receipt  for  a  ticket,  but  we  choose  to  require 
3-ou  to  pay  the  money,  and  you  can  sue  us  for  damages  for  violating 
our  contract ;  when  you  get  your  money,  that  will  be  equivalent  to 
your  tax  receipt,  and  you  can  then  buy  your  ticket  to  Mobile.  It 
is  far  from  being  clear  that  the  remedy  by  action  for  damages  would 
be  equivalent  to  a  specific  execution  of  the  obligation.  It  might 
he  that  a  judgment  against  the  company  would  not  be  readily  con- 
vertible into  money. 

It  is  a  general  rule  that  zvhenevcr  a  statute  giz'es  poiver  to,  or 
imposes  an  obligation  on,  a  particular  person  to  do  some  act  A 
duty,  and  provides  no  speciHc  remedy  on  non-performance,  a  manda- 
mus zvill  he  granted:  Tapping  Maud.  80;  Winters  v.  Burford,  6 
Cold.  W.   (Tenn.)   330. 

Moses  ]\Iand.  p.  14,  lays  down  this  as  the  rule :  'Tt  will,  there- 
fore, be  observed  that  it  is  one  of  the  remedies  resorted  to  when  a 
person  desires  to  be  placed  in  the  possession  of  a  right  illegally 
and  unjustly  withheld  from  him.  It  does  not  award  damages  as 
a  compensation  for  an  injury,  but  it  seeks  to  give  the  thing  itself — 
the  withholding  of  which  constitutes  the  injury  complained  of." 
And  he  adds :  "The  office  of  the  writ  of  mandamus  is  verv  exten- 
sive. It  has  been  said  that  it  is  the  supplementary  remedy  when 
all  others  fail." 

Again,  at  p.  18,  he  says:  "That  although  the  power  to  issue  the 
writ  in  Amierica  is  not  regarded  as  a  prerogative  power,  yet  it 
so  far  partakes  of  the  nature  of  a  prerogative  writ,  that  the  court 
has  the  power  to  issue  or  withhold  it,  according  to  its  discretion. 
But  this  discretion  is  not  an  arbitrary  one :  it  is  a  judicial  discretion, 
and  when  there  is  a  right,  and  the  law  has  established  no  specific 
remedy,  this  writ  should  not  be  denied."  7  Cush.  (Mass.)  226:  Angel 
&"  Ames  Corp.  §§  699-710.  Redfield  Railways,  \o\.  2,  p.  279,  savs : 
"No  better  rule  can  be  laid  down,  than  that  where  the  charter  of  a 
corporation,  or  the  sreneral  statute  in  force,  and  applicable  to  the 
subject  imposes  a' specific  duty,  either  in  terms,  or  by  fair  and  reason- 
able construction,  and  implication,  and  there  is  no  other  specific  or 
adequate  remedy,  the  writ  of  mandamus  will  be  awarded." 

We  deem  it  useless  to  cite  other  authorities  to  the  effect,  that 
whenever  there  is  a  right  that  has  been  illegally  and  unjustly  with- 
held, and  there  is  no  other  specific  adequate  remedv,  the  writ  will 
be  issued,  and  private  persons,  as  well  as  the  public,  are  entitled  to 


22  MOlilLE,   &C.,  R.   CO...  V.   WISDOM.  §    I 

its  benefits.    Withers  v.  Burford,  6  Col.  328;  Angel  &  Ames  Corp. 

§§  704-707. 

In  the  case  before  us,  the  legal  right  is  clear,  the  obligation  cre- 
ated by  the  general  statute,  and  the  acceptance  of  its  provisions 
and  benefits  by  the  company  is  obvious,  and  the  vi'ithholding  of  the 
right  is  illegal  and  unjust.  It  is  equally  obvious  that  there  is  no 
specific  adequate  remedy  provided  by  the  law^  which  created  the 
right  and  the  obligation. 

It  appears  by  reference  to  the  act  of  1852  that  its  leading 
object  was  to  give  assistance  to  the  railroads  then  struggling  into 
existence  by  authorizing  the  people  of  counties  to  subscribe  for 
stock,  and  to  pay  the  same  by  imposing  taxes  on  themselves.  This 
assistance  was  sought  for  and  accepted  by  the  companies,  not  so 
much  to  swell  the  number  of  their  subscribers  for  stock,  as  to  procure 
the  material  aid  to  be  furnished  by  taxation.  To  secure  this  object, 
the  jMobile  &  Ohio  R.  R.  Company  not  only  agreed  that  the  counties 
so  furnishing  aid  should  be  represented  in  the  company,  but  that 
every  individual  who  should  buy  up  $100.00  of  the  tax  receipts 
should  become  a  stockholder,  and  in  addition  to  this,  that  every 
holder  of  the  tax  receipts,  who  preferred  to  invest  his  tax  receipts 
in  freight  or  passage  on  the  road,  should  have  the  right  to  do  so. 
The  acceptance  of  the  assistance  from  the  county  of  Madison  im- 
posed all  these  obligations  on  the  united  corporation  represented 
by  its  officers.  Each  of  these  obligations  is  equally  binding  on 
the  corporation,  and  after  having  accepted  the  taxes  and  used  them 
for  the  common  benefit  in  building  the  road,  they  cannot  now  re- 
pudiate any  of  the  obligations  thus  assumed. 

4.  It  is  next  objected,  that  the  writ  in  this  case  is  sued  out, 
not  so  much  to  have  the  right  of  the  petitioner  enforced,  as  to  the 
three  tax  receipts  exhibited  in  his  petition,  as  to  test  the  question, 
with  the  view  of  having  a  decision  that  will  be  applicable  to  many 
other  like  receipts.  We  are  unable  to  appreciate  the  force  of  this 
objection.  As  far  as  we  are  able  to  see,  the  petitioner  has  sued 
out  the  writ  in  good  faith  to  have  his  rights  determined  in  the 
specific  case  presented.  It  can  surely  be  no  reason  for  our  with- 
holding from  him  his  rights,  that  he  or  others  may  have  other  similar 
rights  that  may  be  settled  by  this  adjudication.  It  is  our  duty  to 
determine  causes  brought  regularly  before  us,  according  to  law,  and 
to  leave  the  consequences  of  our  decision  on  other  cases  to  have 
their  legitimate  weight. 

It  results  that  we  find  no  error  in  the  action  of  the  Circuit 
Judge  in  refusing  to  quash  the  writ  and  petition,  and  we  affirm  his 
judgment  for  a  peremptory  mandamus.     Affirmed. 

Under  tin-  statute  of  Tllinnis,  the  remedy  by  Mandamus  is  not  affected  by 
the  existence  of  another  legal  remedy.    III.  Stat.,  c.  87,  §  9. 


^     I  IMANUAMUS,    IN    GENERAL.  23 

PEOPLE  EX   REL.    TOWNSHIP    OF    LA    GRANGE  v.   THE 
STATE  TREASURER. 

1872      Sui'REME  Court  of  Michigan.    24  Mich.  468. 

Campbell,  J. — The  relator  having  obtained  an  order  on  respond- 
ent to  show  cause  why  certain  municipal  bonds,  deposited  with 
him  under  the  railroad  aid  laws,  should  not  be  delivered  up, 
he  returns  that  he  has  been  served  with  a  subpoena  in  a  case  in 
equity,  issued  out  of  the  circuit  court  for  the  U.  S.  for  the 
Eastern  District  of  Michigan,  under  a  bill  filed  by  Joseph  E.  Young, 
of  Chicago,  111.,  against  respondent,  relator,  and  the  Michigan  Air 
Line  R.  R.  Co.,  to  obtain  the  same  bonds  for  the  company. 

And  this  return  being  demurred  to,  respondent  relies  on  two  prin- 
cipal grounds :  First,  that  mandamus  is  not  a  proper  remedy  in 
such  cases,  and  second,  that  the  pendency  of  the  chancery  suit 
should  stay  it.     The  latter  question  is  first  in  order  of  importance. 

It  is  not  claimed  that  the  pendency  of  a  suit  like  that  referred 
to  can,  in  any  way,  operate  as  a  bar  to  these  proceedings.  There 
is  no  authority  for  any  such  doctrine,  and  all  practice  is  against  it. 
The  only  argvnnent  insisted  upon,  is  that  in  such  cases  comity 
requires  that  this  court  should  await  the  final  action  in  that  suit — 
or  a  least  that  such  delay  is  proper  and  desirable,  and  should  be 
granted  as  a  matter  of  customary  policy.  To  ascertain  how  far 
it  would  be  proper  to  do  this  each  class  of  cases  must  be  exam- 
ined as  it  arises,  and  it  is  not  possible  that  there  can  be  any  uniform 
rule  on  the  subject.  It  must  always  be  remembered  that  in  con- 
sidering such  questions,  it  is  not  usually  the  court  where  action  is 
liad,  but  the  parties  that  are  taking  it,  that  must  be  regarded. 

Courts,  except  by  appellate  process,  never  interfere  with  each 
other's  proceedings,  and  deal  with  the  party  themselves. 

When  we  look  at  the  nature  of  the  bill  that  has  been  filed  in 
the  U.  S.  Circuit  Court,  we  find  its  purpose  so  clearly  in  violation 
of  legal  principles,  as  settled  generally  (and  as  emphatically  by  the 
U.  S.  Supreme  Court  as  anywhere),  that  we  cannot  hesitate  to 
regard  it  as  one  over  which  the  court  where  it  is  pending  will  not 
assume  jurisdiction  to  grant  relief.  Its  objects  are  not  within  the 
jurisdiction  of  any  court  of  equity,  as  that  jurisdiction  has  thus 
far  been  declared,  and  it  is  not  very  likely  that  any  tribunal  will 
entertain  it. 

We  are  then  to  consider  whether  a  mandamus  is  the  proper 
remedy   for  a   refusal   to   comply  with  this   duty. 

It  was  urged  on  the  argument  that  this  writ  will  only  lie  where 
there  is  a  positive  statutory  duty  and  an  entire  absence  of  any  other 
remedy.  And  it  is  claimed  that  the  decisions  heretofore  made  sus- 
tain this  view.     We  do  not  know  of  any  such  doctrine,  and  have 


24  PEOPLE  V.  THE  STATE  TREASURER.  ^  I 

never  understood  it  to  have  been  established  in  this  state  or  else- 
where. In  the  frequent  instances  of  application  for  this  writ,  the 
occasion  has  quite  as  often  been  to  enforce  duties  not  imposed  by 
statute,  as  obligations  which  were  statutory.  There  may  possibly 
be  found  isolated  expressions  wdiich,  apart  from  their  context 
and  the  occasion  of  their  utterance,  might  favor  one  of  the  grounds 
claimed.  Thus,  in  People  v.  Judges,  i  Doug.  (Mich.)  319,  it  was 
said  that  there  must  be  "no  other  remedy."  In  that  case  there 
was  a  better  remedy  in  the  ordinary  course  of  law,  which  reached 
all  that  could  be  desired.  But  in  People  v.  Judge,  19  Mich.  296, 
the  doctrine  was  laid  down  more  guardedly,  tliat  the  relator  must 
show  "a  clear  legal  right,  and  that  there  is  no  other  adequate  rem- 
edy." And  in  People  v.  Ins.  Co.  19  Mich.  392,  it  was  expressed 
more  fully  that  the  writ  might  issue  for  a  specific  duty  where  there 
is  no  other  "specific  and  adequate  remedy." 

Blackstone  very  clearly  defines  the  jurisdiction  in  a  few  words. 
He  says  it  lies,  "where  the  party  hath  a  right  to  have  anything 
done,  and  hath  no  other  specific  means  of  compelling  its  perform- 
ance." 3  Blackstone  Comm.  no.  In  Rex  v.  Windham,  i  Cowp, 
(K.  B.)  377,  Lord  Mansfield  adopts  a  statement  of  Mr.  Kenyon, 
"that  wdiere  there  is  no  other  legal  specific  remedy  to  attain  the 
ends  of  justice,  the  course  must  be  by  mandamus,  which  is  a  pre- 
rogative writ."  In  Rex  v.  Barker,  3  Burr.  (K.  B.)  1265,  he  says,. 
"Therefore  it  ought  to  be  used  upon  all  occasions  where  the  law 
has  established  no  specific  remedy,  and  where,  in  justice  and 
good  government  there  ought  to  be  one.  Within  the  last  century 
it  has  been  liberally  interposed  for  the  benefit  of  the  Subject,  and 
the  advancement  of  justice.  The  value  of  the  matter,  or  the 
degree  of  its  importance  to  the  public  police,  is  not  scrupulously 
weighed.  If  there  be  a  right,  and  no  other  specific  remedy,  this 
should  not  be  denied."  And  in  Rex  v.  Cambridge,  3  Burr.  (K.  B.) 
1647,  he  says  again,  "This  is  the  very  reason  of  the  courts  issuing 
the  prerogative  writ  of  a  mandamus,  because  there  is  no  other 
specific  remedy."     The  other  judges  w^ere  equally  emphatic. 

For  most  rights  the  ordinary  legal  remedies  are  ample  to  prevent 
a  failure  of  justice,  as  upon  private  contracts  a  judgment  for  dam- 
ages will  usually  suffice.  But  there  are  cases  where,  if  contracts 
cannot  be  enforced  specially,  there  will  be  a  failure  of  justice;  and 
as  the  law  can  give  no  specific  remedy  in  the  case,  parties  are 
CfMupfllcd  to  resort  to  equity,  if  the  law  had  the  requisite  ma- 
chinery, no  doubt  it  would  so  interfere  as  to  render  a  resort  to 
equity  needless.  And  in  all  cases  where  it  can  enforce  rights  spe- 
cifically, and  no  other  relief  is  adequate,  it  certainly  would  be  unjust 
not  to  flo  so.  l.'^n fortunately  its  powers  arc  limited.  But  in  cases 
where  the  right  is  clear  and  specific  and  public  officers  or  tribunals 
refuse  to  conq)ly  with  their  duty,  a  writ  of  mandamus  issues  for 
the   very    i)urpr)Sf,    as    declared    l)y    T.ord    M.-nisficId,    of   enforcing 


§    I  MANDAMUS,    IN    GENERAL,  25 

specific  relief.  It  is  the  inadequacy,  and  not  the  mere  absence, 
of  all  other  remedies,  and  the  danger  of  a  failure  of  justice  without 
it,  that  must  usually  determine  the  propriety  of  the  writ.  Where 
none  but  specific  relief  will  do  justice,  specific  relief  should  be 
granted  if  practicable.  And  where  a  right  is  single  and  specific 
it  usually  is  practicable. 

The  question  then  arises  whether  there  is  any  other  adequate, 
specific  legal  remedy. 

Courts  of  lazv  do  not,  in  deciding  such  questions,  take  into  account 
remedies  in  equity.  They  may  be  regarded  in  determining  the 
exercise  of  discretion  in  allowing  the  writ,  but  they  cannot  affect 
the  jurisdiction.  There  is  no  case  where  a  court  of  law  has  its 
jurisdiction  cut  off  by  the  existence  of  equitable  remedies.  The 
rule  is  the  reverse — that  equity  will  not  interfere  if  legal  remedies 
are  adequate.  There  is  the  strongest  possible  reason  why  a  party 
should  not  be  turned  over  to  the  tedious  and  dilatory  process  of  a 
long  suit,  when  there  are  no  issues  that  need  it.  The  only  question 
that  could  arise  in  the  class  of  cases  now  before  us,  is  whether  the 
bonds  are  in  the  possession  of  the  respondent.  If  they  are,  the  right 
to  have  them  restored  is  a  legal  conclusion  not  open  to  question. 

The  same  reasons  would  apply  to  render  it  improper  to  turn  a 
party  over  to  a  suit  in  replevin,  if  there  were  not  still  more  serious 
objections  to  it,  as  well  as  doubts  of  its  applicability.  The  rem- 
edy would  not  involve  a  needless  legal  contention,  but  it  is  not  a 
proper  or  legal  thing  to  allow  a  sheriff,  on  such  a  \\rit,  to  inter- 
meddle with  public  papers.  The  policy  of  the  law  requires  them 
to  be  guarded  by  their  official  custodian,  and  it  would  be  a  monstrous 
abuse  if  the  state  offices  could  be  exposed  to  the  visitation  of  minis- 
terial officers  who  might  be  commanded  by  a  writ,  issued  without  the 
previous  order  or  supervision  of  a  court,  to  seize  upon  and  deliver 
over  to  any  one,  who  should  sue  out  the  process,  any  document  or 
muniment  to  be  found  there.  Such  a  claim  would  be  preposterous. 
A  mandamus  is  the  only  admissible  writ  to  command  public  officers 
to  produce  and  give  up  papers  in  their  custody. 

The  writ  must  be  granted  as  prayed.  And  we  trust  it  will  not 
be  necessary  hereafter  to  interpose  for  the  same  purpose. 

Christiancy,  C.  J.,  and  Cooley,  J.,  concurred. 

Graves,  J.,  did  not  sit  in  the  case. 

Whether  the  pendency  of  a  suit  in  equity  will  constitute  a  bar  to  relief  by 
Mandamus  depends  wholly  upon  the  extent  and  effect  of  the  equitable  relief 
sought.  If  the  court  of  equity  is  in  a  position  to  afford  complete  relief,  the 
petition  in  mandamus  will  usually  be  dismissed.  See  Spelling  Inj.  and  Ext. 
Rem.,  §  1376.  The  Queen  v.  Pitt,  10  Ad.  &  E.  (K.  B.)  272;  People  v.  War- 
field,  20  111.  160;  People  V. -Wiant,  48  Til.  263;  Smithee  v.  Mosely,  31  Ark.  425; 
State  V.  Custer.  11  Tnd.  210;  Cincinnati  Volksblatt  Co.  v.  Hoffmeister,  62 
Ohio  St.  189,  56  N.  E.  Rep.  1033 ;  Hardcastle  v.  jMd.,  etc.,  R.  Co.,  32  Md.'  32. 


26  •  IN    RE   THE   TRENTON    WATER    POWER    CO.  §     I 

IN  RE  THE  TRENTON  WATER  POWER  CO. 

1846.     Supreme  Court  of  New  Jersey.     20  N.  J.  L.  659. 

W.  Halstead  moved  for  a  mandamus  against  the  Trenton  Water 
Power  Co.,  directing  them  to  erect  a  bridge  over  Delaware  St.  in 
the  city  of  Trenton,  where  their  main  sluice  or  canal  crosses  the 
street. 

S.  G.  Potts  opposed  the  application,  and  insisted,'  ist,  that  the 
company  are  not  bound  by  law  to  build  such  bridge ;  2d,  if  they  are 
bound  to  do  so,  it  is  by  no  means  a  clear  and  unquestionable  duty ; 
and  a  mandamus  cannot  go  in  cases  of  doubtful  right;  and  3d,  if 
the  duty  is  clear,  yet,  there  is  a  remedy  by  indictment ;  and  the 
court  will  not  award  a  mandamus,  where  the  party  has  another 
remedy. 

HoRNBLOWER,  C.  J.,  delivered  the  opinion  of  the  court. 

As  to  the  propriety  of  the  remedy,  supposing  the  obligation  to 
be  clear,  there  can  be  very  little  doubt.  The  fact  that  an  indictment 
would  lie,  furnishes  no  objection,  in  a  case  of  this  kind.  This  was 
decided  after  full  argument,  .in  the  case  of  Rex  v.  Severn,  &c.  R. 
Co,  2  Bam.  and  Aid.  (K.  B.)  646;  and  in  the  State  v.  Holiday,  3 
Halst.  (N.  J.  L.)  205. 

The  reasoning  of  the  respective  courts,  in  those  two  cases,  is 
strikingly  similar,  although  Judge  C.  J.  Ewing  does  not  cite 
the  English  case,  and  probably,  had  not  seen  a  report  of  it.  Chief 
Justice  Abbott,  in  that  case,  remarks,  "If  an  indictment  had  been 
a  remedy,  equally  convenient,  beneficial  and  effectual  as  a  mandamus, 
I  should  have  been  of  the  opinion  that  we  ought  not  to  grant  the 
mandamus ;  but  I  think  it  is  perfectly  clear,  that  an  indictment  is 
not  such  a  remedy ;  for  a  corporation  cannot  be  compelled,  by  indict- 
ment, to  re-instate  the  road."  The  company  in  that  case  had  taken 
up  a  branch  of  their  road,  which  led  to  certain  coal  mines,  and 
had  opened,  another  road  to  mines  of  their  own ;  and  the  manda- 
mus was  applied  for  to  compel  them  to  relay  their  road,  where 
they  had  taken  it  up.  "The  court  may  indeed,"  continues  the 
Chief  Justice,  "in  case  of  conviction,  impose  a  fine ;  and  that  fine 
may  be  levied  by  distress ;  but  the  corporation  may  submit  to  the 
payment  of  the  fine,  and  refuse  to  re-instate  the  road."  In  State 
V.  ITolliday,  Chief  Justice  I'^wing  enters  into  a  very  elaborate  argu- 
ment on  tlio  subject  and  shows  by  authority,  as  well  as  on  principle. 
that  unless  there  be  a  legal  and  specific  remedy,  a  mandamus  will 
issue  in  cases  of  this  sort,  although  an  indictment  would  also  lie. 
That  was  the  case  of  refusal,  by  the  overseer  of  the  highway,  to 
open,  clear  out,  and  make  a  certain  road,  within  the  limits  assigned 
to  his  care,  by  the  townshij)  committee.  "It  is  manifest,"  says  the 
Chief    Justicp,    after    enumerating    the    remedies,    by    ]iresentment. 


^    I  MANDAMUS,    IN    GF.NEKAL.  2/ 

fine  and  penalty,  given  by  the  statute  against  the  dehnquent  in 
such  cases, — "it  is  manifest,  that  the  penalty  may  be  paid,  or  the 
line  satisfied ;  and  yet,  the  road  may  not  be  opened,  or  cleared  out, 
nor  the  public  be  enabled  to  enjoy  the  use  of  it.  These  remedies 
cannot  then  be  denominated,  specific."  Hence  the  Chief  Justice 
concludes  that  a  mandamus  will  lie. 

As  long  ago  as  the  year  1693  it  was  alleged  on  argument  in 
behalf  of  the  crown,  that  "it  was  never  yet  doubted,  but  that  this 
court  might  remove  by  mandamus,  all  common  nuisances,  or  any- 
thing done  to  the  prejudice  of  the  public."  And  on  the  part  of  the 
defendant  in  that  case,  it  was  admitted,  that  the  court  of  King's 
Bench  had  granted  a  mandamus  to  abate  a  nuisance,  without  trial ; 
but  then,  the  fact  had  been  made  certain,  either  by  matter  of  record, 
or  by  a  view,  or  presentment  by  a  grand  jury.  So  it  was  in  Jacob 
Hall's  case,  who  was  presented  by  the  jury  for  a  nuisance  in  the 
highway ;  though  it  was  at  Charing  Cross,  in  the  view  of  the 
justices,  coining  to  Westminster  Hall.  Rex  v.  College,  4  Mod. 
Rep.  (K.  B.)  237,  240. 

Thus  it  seems  to  have  been  held,  that  a  mandamus  might  issue 
where  the  public  interest  required  an  immediate  remedy :  not  merely, 
when  an  indictment  would  lie,  but  even  after  the  finding  of  a  pre- 
sentment by  the  jury. 

Mr.  Chitty,  in  his  book  of  General  Practice,  Vol.  I,  p.  790,  after 
laying  down  the  general  rule,  that  this  writ  is  onlyto  issue,  where 
the  party  has  no  other  specific  remedy,  admits,  that  ]j"Tn  the  case  of  a 
clear,  public  right,  if  it  be  important  to  prevenTgreat  and  imme- 
diate public  damages,  or  inconvenience  to  many  persons,  the  court 
should  immediately  interfere ;  as  in  case  of  a  public  bridge,  or 
other  work  being  in  a  very  dangerous  state,  and  requiring  imme- 
diate repair,  or  support.  If  there  be  no  doubt  respecting  the  obli- 
gation to  repair,  a  mandamus  Igay  be  issued,  although  there  be 
another  remedy  by  indictnifiutiljl  have  no  hesitation  therefore  in 
saying,  that  so  far  as  mandamus  is  objected  to  on  the  ground  of 
another  remedy  existing,  I  see  no  reason  to  withhold  the  writ. 

(After  determining  that  the  company  was  bound  to  erect  a  bridge 
over  their  canal  and  to  keep  the  same  in  repair,  and,  turther,  that 
this  duty  was  clear,  the  writ  of  mandamus  was  granted.) 


I) 


28  PEOPLE    EX    REL.    SUPERVISORS   V.    FOWLER.  §    I 

7.     Xot  granted   to   compel   performance   of   impossible   acts   or 
when  useless  and  unavailing. 

PEOPLE   EX   REL.    SUPER\'ISORS   v.   FOWLER. 

1873.     Court  of  Appeals  of  New  York.     10  Sickels  (N.  Y.)  252. 

Appeal  from  the  order  of  the  General  Term,  of  the  supreme 
court  in  the  second  judicial  department,  reversing  an  order  of  Special 
Term  directing  that  a  peremptory  mandamus  issue  commanding 
defendants,  as  assessors  of  the  town  of  Rye,  Westchester  county, 
to  make  oath,  in  the  form  prescribed  by  the  statute  (§8,  chap.  176, 
Laws  of  1857),  to  the  assessment  roll  of  said  town  for  the  year 
1871. 

The   facts   sufficiently  appear   in   the   opinion. 

x\ndrews,  J. — The  statute  (i  Rev.  Stat.  393,  §  17)  declares  that 
all  real  and  personal  estate,  liable  to  taxation,  shall  be  estimated 
and  assessed  by  the  assessors  at  its  full  and  true  value,  as  they  would 
appraise  the  same  in  payment  of  a  just  debt  due  from  a  solvent 
debtor.  To  insure  the  observance  by  assessors  of  this  statutory 
rule  of  assessment,  and  to  prevent  an  evasion  thereof,  they  are  re- 
quired to  verify  the  assessment  roll,  and  to  make  and  subscribe  an 
oath,  in  the  form  prescribed  by  law,  in  which  shall  be  stated,  among 
other  things,  that,  with  the  exception  of  those  cases  in  which  the 
value  of  real  estate  set  down  in  the  roll  has  been  changed  by  proof 
produced  before  them,  they  have  estimated  its  value  "at  the  sums 
\vhich  a  majority  of  the  assessors  have  decided  to  be  the  full  and 
true  value  thereof,  and  at  which  they  would  appraise  the  same 
in  payment  of  a  just  debt  due  from  a  solvent  debtor." 

It  appeared  upon  the  return  of  the  order  to  show  cause  in  this 
case  by  the  affidavit  of  the  defendant  Purdy,  one  of  the  assessors 
of  the  town  of  Rye,  that  it  had  been  the  custom,  for  several  years, 
of  the  assessors  of  that  town,  in  making  the  assessment  roll,  not 
to  enter  therein  the  value  of  real  estate  at  its  full  value,  or  at  the 
true  or  full  value  at  which  the  assessors  would  appraise  it  in  pay- 
ment of  a  just  debt  due  from  a  solvent  debtor,  but  to  insert  the 
value  at  about  one-third,  or  in  some  cases  one-fourth  the  full  and 
true  value,  and  at  one-third  or  one-fourth  the  sum  at  which  they 
would  aiiy)rai5-c  it  in  payment  of  a  just  debt  due  from  a  solvent  debt- 
or, and  th.'it  this  was  the  plan  or  basis  upon  which  the  assessment 
roll  of  1871  was  made.  The  affidavit  of  the  defendant  Fowler, 
also  one  of  the  assessors,  contains  substantially  the  same  statements, 
and  the  adrjitional  one  that,  in  view  of  the  jiractice  of  the  assessors 
in  other  towns,  in  the  county  of  Westchester  no  other  basis  of  assess- 
ment could  bo  adopted  "in  justice  and  fairness  to  the  town  of 
Rye."    There  was  no  contradictions  of  these  affidavits,  and  the  fact 


§    I  MANDAMUS,    IN    GENERAL.  29 

Stands  unchallenged,  upon  the  statements  o£  the  assessors  them- 
selves, that,  in  making  their  assessment,  they  deliberately  violated 
the  statute  and  their  official  oath  for  the  purpose  of  doing  "justice 
to  the  town  of  Rye." 

The  assessors  made  and  subscribed  an  oath,  annexed  to  the  roll, 
in  which  they  stated  that,  in  making  the  assessment  roll,  they  had 
estimated  the  value  of  the  real  estate  therein  at  a  sum  which  a  major- 
ity of  the  assessors  had  decided  was  its  true  and  full  value,  but  they 
omitted  to  state  that  the  valuations  were  those  "at  which  they  would 
appraise  the  same  in  payment  of  a  just  debt -due  from  a  solvent 
debtor."  The  mandamus  was  sought  to  compel  them  to  add  the 
omitted  clause  to  their  affidavit.  They,  in  answer,  allege  that 
they  could  not  truthfully  swear  to  that  statement.  This  answer 
is  conclusive.  Courts  do  not  sit  to  compel  men  to  take  false  oaths, 
and  whatever  duty  the  assessors  .may  have  omitted, '  they  owe  no 
duty  to  the  public  to  commit  crime,  and  no  public  exigency  can 
require  it  of  them.  The  case  is  directly  wdthin  the  principle  of 
Rowland  v.  Eldredge,  43  N.  Y.  457. 

It  is  said  by  the  counsel  for  the  relator  that,  as  the  assessors 
have  sworn  in  the  affidavit  attached  to  the  roll  that  they  estimated 
the  real  estate  at  what  they  had  decided  was  its  full  and  true  value, 
they  can  therefore  complete  the  statement  required  by  the  statute. 
We  are  not  called  upon  to  reconcile  the  conflicting  affidavits  of 
the  assessors.  Upon  the  facts  now  shown  it  is  clear  that  they 
did  not  decide  that  the  valuation  of  the  real  estate,  set  down  in 
the  assessment  roll,  was  its  true  or  full  value.  In  making  the 
assessment  they  intentionally  inserted  a  valuation  much  less.  If 
they  decided  at  all  what  the  real  value  was,  it  was  merely  to  enable 
them  to  insert  in  the  roll  the  proportion  of  that  value  which  they 
had  agreed  upon  as  the  proper  basis  of  assessment.  The  entry  of 
a  sum  in  the  roll  as  a  value,  although  the  assessors  agreed  to  re- 
gard it,  for  the  purpose  of  assessment,  as  the  true  value,  was  not 
in  any  proper  or  legitimate  sense,  under  the  circumstances,  a  de- 
cision by  them  that  the  sum  inserted  was  the  true  or  full  value. 
The  assent  of  the  judgment  to  the  conclusion  reached  was  wanting, 
which  is  of  the  very  essence  of  a  judicial  determination. 

It  is  sufficient,  to  dispose  of  this  case,  that  the  facts  appear  without 
contradiction,  that  the  basis  of  the  assessment  was  such  that  the  as- 
sessors could  not  truthfully  swear  that  they  had  assessed  the  real 
estate  at  a  sum  "at  which  they  would  appraise  the  same  in  payment  of 
a  just  debt  due  from  a  solvent  debtor." 

The  order  of  the  General  Term  should  be  affirmed. 

All  concur. 

Order  affirmed. 


30  STACY  V.   HAMMOND.  §     I 

STACY  V.  HAMMOND. 

1895.     SupREMK  Court  of  (ii-ioKciA.    96  ( ia.  125,  2}^  S.  E.  ']'j. 

Atkinson,  J. — It  appears  that  on  July  14,  1894,  a  petition  bearing 
the  names  of  the  requisite  number  of  citizens  was  presented  to  the 
ordinary  of  Spalding  county,  asking  that  an  election  be  ordered, 
in  terms  of  the  general  local  option  law,  to  determine  whether 
spirituous  liquors  mentioned  in  the  sixth  section  of  that  act  should 
be  sold  within  the  limits  of  that  county.  For  certain  reasons, 
upon  the  sufficiency  of  which  we  are  not  now  called  upon  to  pass, 
the  ordinary  declined  to  order  that  election.  A  petition  for  man- 
damus was  presented  to.  the  judge  of  the  superior  court,  and  on 
the  15th  day  of  August  next  thereafter,  a  mandamus  nisi  having  in 
the  meantime  been  granted,  the  petition  came  on  to  be  heard.  It 
was  demurred  to,  among  other  reasons,  upon  the  gTOund  that, 
even  if  allowed,  the  mandamus  absolute  must  prove  nugatory 
and  fruitless.  This  demurrer  was  sustained,  and  mandamus  ab- 
solute denied.  The  act  provides  that  the  election  shall  be  held 
within  40  days  after  the  reception  of  the  petition.  It  requires  that 
4  weeks'  notice  be  given  of  the  time  of  holding  the  election. 
It  would,  therefore,  under  the  provision  of  the  act,  have  been 
impossible  to  have  held  the  election  within  40  days  from  the 
time  of  the  reception  of  the  petition  by  the  ordinary,  even  though 
the  mandamus  absolute  had  been  granted.  This  writ  will  never 
be  granted  when  it  would  be  fruitless  or  nugatory,  and  for  this  rea- 
son the  judgment  of  the  circuit  court  in  refusing  a  mandamus  ab- 
solute must  be  sustained.  Let  the  judgment  of  the  circuit  court 
below  be  affirmed. 


// 


O'BRIEN  V.  TALLMAN. 

1877.     SupRKMR  Court  of  MTcriTGAN.     36  Mich.  12. 

Marston,  J. — The  action  m  this  case  was  comnienced  ioL^ustices' 
jcourt  upon  a  replevin  boiicL  Judgment  was  rendered  in  favor  of 
the  plaintiff  and  the  cause  was  then  appealed  to  the  circuit  court, 
whore  a  new  trial  was  had  u])on  the  merits,  and  judgment  rendered 
for  the  defendant.  The  case  comes  here  on  writ  of  error  to  the 
circuit  court.  A  number  of  questions  were  raised  and  discussed, 
but  on  account  of  an  inherent  defect  in  plaintiff's  case  it  will  be 
unnecessary  lo  consider  them,  the  ]:)laintiff  not  being  injured  by 
the  rulings,  if  erroneous,  as  under  the  facts  offered  and  introduced 
in    evidence,   plaintiff   was   not   entitled   to   recover   in   this   action. 


§    I  MANDAMUS,    IN    GENERAL.  3I 

Plaintiff  in  his  declaration  alleges,  after  settng  forth  the  pro- 
ceedings in  the  replevin  suit,  that  a  judgment  was  recovered  in 
said  cause  before  the  justice  against  the  plaintiff  therein  and  in 
favor  of  the  defendant  for  $90.00  damages  and  costs  of  the  suit, 
taxed  at  $6.00,  upon  which  judgment  and  execution  was  issued 
and  returned  unsatisfied.  This  action  is  brought  to  recover  the 
amount  of  that  judgment.  It  appears  in  this  case  that  the  writ 
of  replevin  was  issued  upon  the  i8th  day  of  February,  1873,  re- 
turnable on  the  28th;  that  upon  that  day  the  parties  appeared, 
when  a  motion  was  made  on  behalf  of  the  defendant  that  the 
suit  be  dismissed,  upon  the  ground  that  the  affidavit  was  insuffi- 
cient, which  motion  prevailed ;  when  the  defendant  waived  a  return 
of  the  property,  evidence  was  given  as  to  its  value,  and  defendant 
moved  that  judgment  should  be  rendered  in  his  favor  for  the 
value  as  testified  to,  which  the  justice  refused,  but  did  render  judg- 
ment for  a  return  of  the  property,  with  costs  against  the  plain- 
tiff. 

It  also  appears  that  a  peremptory  writ  of  mandamus  was  issued 
out  of  and  under  the  seal  of  the  circuit  court  for  the  county  of  Van 
Buren,  on  the  9th  day  of  September,  1873,  directed  to  the  justice 
by  whom  such  judgment  was  rendered,  commanding  him  imme- 
diately upon  the  receipt  of  said  writ,  "to  render  and  enter  a  judg- 
ment in  his  docket  in  due  form  in  favor  of  the  defendant  John  E. 
Showerman,  and  against  the  plaintiff  Rhoda  Ann  Williams,  for  the 
value  of  said  property  replevied,  as  proved,  and  costs  of  the  suit, 
and  that  all  judgment  and  entry  in  said  cause  inconsistent  there- 
with be  vacated,  abandoned,  and  held  for  naught."  In  obedience 
to  this  writ,  the  justice  made  an  entry  in  his  docket,  vacating,  aban- 
doning, and  holding  for  naught  all  judgments  and  entries  incon- 
sistent with  said  writ,  and  did  at  the  same  time  render  judgment 
against  the  plaintiff  and  in  favor  of  the  defendant  in  said  replevin 
suit,  for  ninety  dollars  damages  and  six  dollars  costs.  This  is  the 
judgment  declared  upon  by  the  plaintiff  in  this  case. 

We  are  of  the  opinion  that  the  so-called  judgment  rendered  in  obe- 
dience to  the  mandamus  is  a  nullity,  and  that  the  judgment  of  Feb- 
ruary 28,  1873,  is  yet  in  full  force,  and  was  in  no  way  affected  by  the 
proceedings  under  that  writ. 

Had  the  justice  refused  to  render  a  judginent  in  said  cause,  in 
a  case  proper  for  a  judgment  to  be  rendered,  a  mandamus  might 
have  been  issued  to  compel  him  to  proceed  and  enter  up  a  judg- 
ment. Taylor  v.  Tripp,  15  Mich.  518.  The  justice,  however, 
(lid  proceed  to  render  a  judgment  for  the  return  of  the  property. 
This  judgment  may  not  have  been  the  proper  one,  hutthe  statute 
j^iv£S__the  party  who  considersjiimself  aggrieved  thereby  the  right 
to  remove  the~"caiTse~'By'"'c<?rKorari  or  appeal  to  the  circuit  court. 
'TTTe"s'fatute^"thiis  "g1ye£^^  full " and  aderiuatc  romcd}'  bv  which 


32  __  O  BRIEN   \\   TALLMAN.  §    I 

he  can  protect  his  interests.  This  being  so,  mandamus  is  not  the 
proper  remedy,  and  we  have  previously  held  that  iimndarnus  will 
not  lie  to  review  irregularities  in  the  judicial  action  of  an  inferior 
couft,~wTier'e  the  party  injured  had  another  remedy.  Mabley  v. 
Court,  32  Mich.  190.  If  the  writ  of  mandamus  was  the  proper 
remedy  in  such  cases,  we  might  have  one  of  the  parties  applying 
to  the  circuit  court  for  the  writ  to  compel  the  vacation  of  a  judgment, 
while  the  other  party  would  be  taking  steps  to  remove  the  cause 
to  the  circuit  court  upon  appeal  or  certiorari.  And  if  the  writ  should 
issue  and  the  judgment  be  vacated,  and  a  new  judgment  rendered 
by  the  justice  in  obedience  thereto,  would  not  the  opposite  party 
«:till  have  the  right  to  remove  the  judgment  so  rendered  to  the  circuit 
court  for  trial  or  review?  so  that  we  would  have  the  circuit  court 
reviewing  the  judgment  of  a  justice  rendered  in  obedience  to 
its   own   command. 

There  is  still  a  further  objection:  the  circuit  court  could  not  in  this 
manner  compel  the  justice  to  do  an  act  which  the  justice  of  his 
own  motion  cordd  not  have  done.  When  a_ judgment  is  once  ren- 
dered  by  a  justice  he  has  no  further  power  or  control  over  it 
except  such  as  may  be  necessary  to  enforce  it.  He  has  no  power  to 
vacate  or  set  aside  such  judgment  or  to  render  a  new  judgment 
in  such  cause,  and  should  he  attempt  to  do  so,  his  action  would 
be  coram  non  judice  and  void. 

Judgment  must  be  affirmed  with  costs. 

The  other  justices  concurred. 

See  also  Bass  v.  Taft,  137  U.  S.  458,  11  Sup.  Ct.  154;  Spiritual  Society  v. 
Randolph,  58  Vt.  192,  2  Atl.  Rep.  747 ;  People  v.  Bartlett,  67  Cal.  156.  7  Pac. 
Rep.  417;  State  v.  Board  of  Health.  4Q  N.  J.  L.  349.  8  Atl.  509;  McAleer  v. 
County,  42  Fed.  665  ;  State  v.  Archihald,  43  Minn.  328,  45  N.  ^\■.  606 ;  Ex  parte 
Shaudies,  66  Ala.  134;  People  v.  Monroe  Oyer  and  Terminer,  20  Wend.  (N. 
Y.)  108;  Universal  Church  v.  Trustees,  6  O.  446;  State  v.  Schofield.  41  Mo. 
38;  Roberts  v.  Smith,  63  Ga.  213. 


PEOrLE  v.  HAKE. 

TS76.      SUPREMK  COUHT  OF   Tl.LI.NOIS.       8l    111.   54O. 

Tftis  is  a  petition  under  chap.  ?>y  of  the  Rev.  Stat.  1874.  praying 
a  mandamus  against  Hake,  as  Mayor  of  East  St.  Louis,  and 
the  rlf-rk,  to  compel  them  to  issue  and  deliver  to  the  relator  a 
certain  certificate  for  $2to.oo,  payable  out  of  a  special  appropriation 
of  $1,000.00,  made  by  the  city  for  its  health  department,  for  the 
year    1876. 

Per  curiam. — It  appears  by  the  record  in  this  case  that  the 
respondent  is  enjoined  in  another  proceeding  from  doing  precisely 


§     I  MANDAMUS,    IN    GENERAL.  33 

the  same  thing  that  is  here  sought  to  compel  him  to  do  by  manda- 
mus, and  that  such  proceeding  is  now  pending  for  hearing  at  the 
next  term  in  the  southern  division.  The  adjudication  in  that  case 
Vv-ill  settle  the  question  attempted  to  be  raised  in  this,  and,  on  principle 
announced  in  People  v.  Warfield,  20  111.  159,  and  People  v.  Wiant, 
48  111.  263,  mandamus  will  not  be  awarded. 
Mandamus  refused. 


8.     Mandamus   does   not   lie   to   enforce   contractual   obligations. 
BAILEY  V.  OMATT. 
1874.     Supreme  Court  of  Vermont.     46  Vt.  627. 

Ross  J. — -This  is  a  petition  for  a  writ  of  mandamus.  The  re- 
lators are  a  committee  from  the  senate  and  house  of  representatives 
~~^ot^iE'/2,  appointed  under,  and  deriving  their  authority  from,  the 
following  joint  resolution:  "Ivcsdlxcd,  That  a  committee  of  three 
senators  and  three  members  of  the  house  be  appointed  respectively 
1)y  the  president  of  the  senate  and  the  speaker  of  the  house,  t^ 
inquire^  whether  or  not  it  is  true  that  in  A.  D.  1869,  or  at  any 
TimeT)efore"or  "^nce  that  time,  moiiey^was  paid  directly  or  indirectly 
by  any  trustee,  mana-t-r.  rrocixxr,  officer,  or  agent  of  any  railroad,  or 
■?JiTrfoa7!~company,  in  this  state,  tojmTmember  of  either  house  of  the 
legisla.turc  I'l  >r  the  purju.se  of  influencing  legislaTTon  ;  whether  or  not 
Tit  fs  true,  that  under  any  power  derived  from  either  branch  of 
the  government  of  this  state,  any  person  connected  with  the  afore- 
said railroads  or  companies,  has  practiced  frauds  or  peculations ; 
and,  finally,  to  investigate  fully,  all  and  singular  the  matters  above 
referred  to ;  and  said  committee  to  have  power  to  send  for  per- 
sons and  papers  and  to  employ  counsel  to  prosecute  the  investigation 
to  its  fullest  extent,  and  to  make  report  to  the  present  session  of 
the  legislature ;  also  to  inquire  whether  any  member  or  officer  of 
cither  house  of  this  general  assembly  has  written  or  aided  in 
procuring  to  be  published,  the  articles  in  the  Boston  Traveller, 
touching  any  measures  now  pending  before  the  legislature ;  also, 
whether  any  member  or  officer  of  either  house  of  the  general  as- 
sembly are  in  the  pay  and  employment  of  any  individuals  opposed 
to  the  passage  of  any  such  measures."  By  a  subsequent  resolu- 
tion, the  committee  were  authorized  to  pursue  their  investigations 
after  the  adjournment  of  the  legislature,  and  to  make  report  to  the 
Governor  on  or  before  Jidy   i,    1873. 

In  pursuing  their  investigations,  the  .committee  employed  the  de- 
Jen_fl_ant  to  take  and  report  the  testimony  that  should  be  produced 


34  BAILEY    V.    OVIA'IT.  ;f     I 

^eforc  them.  I!i£_defej2dant  entered  upon  the  employment,  took  the 
testimony,  has  transcribed  some  of  it,  and  has  failed  to  transcribe  the 
■residue^_^  It  is  unnecessary  to  inquire  whether  the  resoHitlon  con- 

'*Terred  upon  the  committee  the  power  to  employ  the  defendant  in  that 
capacity.  It^jis. sufficient  that  it  did  not  create  the  office  of  reporter 
for  the  committee,  and  appoint,  or  empower  the  committee  to  appoint 

'the  defendant  or  any  other  person  to  that  office.  In  taking  and  re- 
porting- the  testimony,  the  defendant  was  not  discharging  the  duties  of 
any  public  office.  He  was  acting  as  the  mere  servant  of  the  committee, 
as  it  were,  their  hands  to  take  down  the  words  as  they  fell  from  the 
lips  of  the  witnesses,  in  shorthand,  and  afterward  to  transcribe  his 
characters  into  written  language.  In  the  petition,  the  relators  say, 
"They  employed,  by  their  chairman,  Henry  Oviatt,  of  Montpelier, 
in  the  county  of  Washington  to  act  as  clerk  and  stenographer,  and 
as  such,  to  take  full  and  accurate  notes  of  the  testimony  given  and 
introduced  before  them,  and  said  Henry  Oviatt  accepted  the  office, 
duty,  and  trust  of  clerk  and  stenographer  for  the  committee."  The 
committee  could  have  discharged  the  defendant  from  their  employ- 
ment at  any  time,  and  he  could  have  withdrawn  from  such  employ- 
ment at  any  time.  JTe  held  no  office,  the  duties  of  which  he  could 
compel  the  committee  to  allow  him  to  discharge ;  nor  could_he  be 
'Trompclled,  longer  than  he  chose,  to  jiischarge  such  duties.     While 

"acting  as  clerk  and  stenographer  for  the  committee,  he  was  perform- 
ing a  service,  discharging  the  duties  of  an  employment,  duties  im- 
posed by  contract,  and  nothing  more.  From  the  affidavits  read  on 
the  hearing,  which  are  to  be  taken  as  true,  inasmuch  as  the  defend- 
ant allowed  the  petition  to  be  defaulted,  it  appears  that  the  defendant 
discharged  the  duties  of  his  employment,  to  the  acceptance  of  the 
committee,  so  far  as  to  take  in  full,  stenographically,  all  the  testi- 
m.ony  introduced,  to  transcribe  a  considerable  portion  of  it.  He 
has  not  absolutely  refused  to  make  a  transcript  of  the  residue  of  the 
testimony  and  deliver  it  to  the  committee.  Ijy  what  appear  to  be 
f.'dse  promises,  evasions,  groundless  excuses,  if  not  willful  false- 
hoods, he  seems  to  have  done  worse  than  to  absolutely  refuse.  No 
court  would  hesitate  to  command  him  to  discharge  his  duty,  and 
redeem,  at  least,  one  of  his  promises,  if  he  stood  in  a  position  that 
gave  to  the  court,  the  legal  power  to  command  and  enforce  its  com- 
mands. The  relators  ask  this  court  to  command  him  to  transcribe 
vu(\  deliver  to  them  the  balance  of  the  testimony  taken.  Can  this 
court  legally  issue  such  a  command?  By  Gen.  Stat.  ch.  30,  §  11.  this 
court  is  clothed  with  the  power  to  issue  the  writ  of  mandamus  "to  the 
furtherance  of  justice,  and  the  regular  execution  of  the  laws."  This 
confers  upon  this  court  all  the  powers  to  issue  such  writ  that  was 
exercised  ],y  the  court  of  King's  Bench.  "\  mandanms  is  a  writ 
commnnfling  tlic  execution  of  an  act  where  otherwise  justice  would 
be  obstructed,  or  the  King's  chiirter  neglected,  issuing  regularly 
only  in  those  cases  rchUing  to  the  public  and  the  government,  and 


^    I  MANDAMUS,    IN    GENERAL.  35 

it  is  therefore  termed  a  prerogative  writ,  being  grantable  only  where 
the  public  justice  of  the  nation  is  concerned."  Bac.  Abr.  Mandamus, 
(A).  The  same  author  cites  a  number  of  cases  in  which  the  court 
of  King's  Bench  refused  to  issue  the  writ  to  compel  the  performance 
of  a  service.  From  a  careful  investigation  of  all  the  cases  to  which 
I  have  had  access,  I  have  not  been  able  to  find  one  in  which  the  v^rit 
has  been  issued  to  compel  the  performance  of  a  mere  service. 
While  it  is  of  a  highly  remedial  nature,  "to  the  furtherance  of  justice 
and  the  regular  execution  of  the  laws,"  courts  having  jurisdiction  of 
the  writ,  can  use  it  only  to  compel  the  discharge  of  duties  imposed  by 
law,  as  distinguished  from  duties  imposed  by  contract  merely.  The 
duty  of  the  defendant  was  created  by  his  contract  with  the  com- 
mittee. It  is  a  duty  that  he  owes  to  the  committee  as  their  servant, 
and  not  one  that  he  owes  to  them  by  reason  of  any  office  which  he 
holds,  or  from  having  it  imposed  upon  him  by  law.  He  is  under  no 
obligation  to  discharge  the  duty,  because  he  owes  it  to  the  public, 
and  the  committee  have  no  right  to  have  the  duty  discharged,  be- 
cause they  have  a  special  interest  in  the  discharge  as  a  public  duty. 
It  is  true  that  his  failure  to  discharge  his  contract  duty  to  them, 
hinders  them  in  the  discharge  of  their  public  duty,  as  a  committee 
of  investigation,  but  that  does  not  render  his  any  more  a  public 
duty.  It  simply  shows  that  the  committee  was  very  unfortunate  in 
the  choice  of  a  servant.  Suppose  that  the  defendant,  after  having 
contracted  to  act  as  clerk  and  stenographer  for  the  committee,  but  be- 
fore entering  upon  the  work,  had  refused  to  act  in  that  capacity, 
would  any  one  claim  that  this  court  could  compel  him  to  perform 
those  services  by  the  writ  of  mandamus?  We  think  not.  No 
more  can  it  legally  issue  the  writ  to  compel  him  to  perform  what 
remains  unperformed  of  those  services.  "A  mandamus  lies  to  de- 
liver up  the  ensigns  of  an  office,  or  the  papers  or  records  of  a  pub- 
lic nature  to  a  successor;  as  a  mandamus  to  deliver  the  mace  and 
other  ensigns  of  mayoralty  to  the  succeeding  mayor,  or  to  an  ex- 
town  clerk  to  deliver  to  his  successor  the  several  books  that  be- 
long to  that  office."  Bacon  Abr.,  Mandamus  (D),  Walter  v.  Bel- 
den,  24  Vt.  658.  The  committee  have  attempted  to  make  the  tes- 
timony a  part  of  their  report.  It  is  somewhat  difficult  to  comprehend 
how  that  can  be  a  part  of  their  report  which  they  have  never  had  in 
their  possession  to  deliver  to  the  governor.  Their  report,  when 
made,  will  be  of  a  public  nature,  and  treat  of  matters  which  pertain 
to  the  public  welfare.  If  the  report  had  been  comph'ted,  and  he  was 
detainin£_it.J[ri3m^hern,_aut1iorities  are  not  wanting  to  show  that 
5ould  be  compelled  M^  mandamus  to  (leli^■er  it  to  the  relator. 


FiT'Trould   be  compgijea  Jj3L..nianaa 

'mTie~reSp'ondent  haH~Taken  the  testimony  in  tlie  discharge  of  a 
public  duty,  doubtless  the  court  could  compel  him  to  transcribe 
his  stenographic  characters  into  written  language,  and  to  deliver 
the  transcript  to  the  committee.  His  stenographic  report  of  the 
testimony  is  his  own  private  property,  and  though  taken  to  be  tran- 


36  COMMONWEALTH    V.    HENKY.  §    I 

scribed  for  the  committee  is  not  claimed  to  belong  to  the  com- 
mittee. He  does  what  is  tantamount  to  a  refusal  to  transcribe  his 
stenographic  notes,  and  to  deliver  the  transcript  to  the  committee. 
He  has  no  part  of  their  report  in  his  possession.  They  ask  to  have 
him  compelled  to  transcribe  his  minutes,  and  deliver  them  the  tran- 
script, that  they  may  make  the  transcript  a  part  of  their  report. 
It  is  not  the  delivery  of  a  part  of  their  report,  but  the  performance 
of  his  contract  duty,  that  they  ask  this  court  to  compel.  We  have 
not  been  able  to  find  any  adjudged  case,  or  principle  of  law,  which 
will  authorize  the  issuing  of  the  writ.  Its  issue  in  effect  would  be 
the  compelling  of  the  specific  performance  of  a  personal  contract 
for  service,  for  which  we  do  not  know  of  any  authority  in  law. 
Compensation  in  the  nature  of  damages,  has  always  been  held  to 
be  the  appropriate  and  an  adequate  remedy  for  the  breach  of  a  con- 
tract, for  the  performance  of  a  simple  service.  Where  a  party  has 
an  adequate  remedy,  or  a  remedy  which  the  law  deems  adequate, 
courts  will  not,  ordinarily,  issue  the  writ  of  mandamus. 
The  petition  of  the  relators  is  dismissed. 


9.     Petitioner  must  show  himself  without  fault. 
COMMONWEALTH  v.  HENRY. 
1865.     Supreme  Court  of  Pennsylvania.     49  Penn.  530. 

Agnew,  J. — The  questions  in  this  case  arise  upon  the  return  of 
Alexander  Henry,  mayor  of  Philadelphia,  to  a  writ  of  alternative 
mandamus  issued  out  of  this  court.  The  purpose  of  the  writ^isto 
compel  the  mayor  to  execute  a  release  to  the  relators  for  certain 
lands  of  the  Girard  estates  in  Schuylkill  county.  He  refuses  _to  do 
so  on  two  grounds:  ist.  That  the  ordinance  of  December^  26th, 
t8<^i,  vests  in  him  a  sound  discretion.  2d.  That  the  relators  have 
bfen  guilty  of  corrupt  practices  in  procuring  themselves  to  be  nom- 
inated as  lessees. 

The  language  of  the  ordinance  as  recited  in  the  petition  is  this : 
"The  mayor  of  Philadelphia  be  and  he  is  hereby  authorized  to  exe- 
cute a  lease  with  Jas.  C.  Connor,  or  such  other  persons  as  may  be 
accepted  from  time  to  time,  by  the  superintendent  of  tlie  Girard  es- 
tates, unrler  the  supervision  of  the  committee  on  Girard  estates,  of 
ihc  coal  lands  in  Schuylkill  county,  vested  in  the  city  of  Philadelphia 
by  the  last  will  of  Stephen  Girard;  in  the  form  prepared  by  the  city 
solicitor,  and  apprDved  by  the  committee  on  Girard  estates,  and  re- 
ported \n  councils  nrcembcr  ^th,  t86t." 


§    I  MANDAMUS,    IN    GENERAL.  ^J 

These  are  acts  of  legislation  where  "may"  will  be  interpreted  to 
mean  "shall,"  or  where  the  language  of  mere  authority  will  be  held 
to  be  a  command.  The  letter  of  the  law  is  violated  to  preserve  its 
spirit  and  intent. 

In  the  mode  established  by  the  ordinance,  we  find  the  mayor 
playing  no  subordinate  part.  The  right  of  granting  the  lease  is  not 
vested  finally  in  any  other  person  or  body.  It  is  he  tliat  does  the  last 
and  important  act  which  concludes  the  city,  and  this  he  does  in  a 
prescribed  and  settled  form  adopted  by  the  councils.  But,  as  pre- 
liminary to  the  exercise  of  this  authority,  and  as  a  check  on  hasty  or 
ill-advised  leasing,  the  applicant  is  to  be  accepted  by  the  superin- 
tendent, under  the  supervision  of  the  committee  on  the  Girard  es- 
tates. This  accords  with  the  nature  and  importance  of  the  subject, 
and  secures  full  information  upon  distant  properties  and  the  persons 
to  become  tenants,  while  the  final  responsibility  is  cast  upon  the 
single  head  and  chief  executive  of  the  corporation.  The  superin- 
tendent receives  the  application  and  accepts  the  tenant  under  the 
supervision  of  the  committee,  and  the  mayor  concludes  the  trans- 
action by  formally  executing  and  delivering  the  lease.  Care  and  de- 
liberation are  thus  secured,  and  they  are  shared  in  by  the  head  of 
the  corporation.  It  is  only  by  distorting  a  mere  authority  into  a 
command  the  mayor  is  made  to  perform  a  purely  ministerial  duty. 
It  is  at  variance  with  the  language  of  the  ordinance  and  the  char- 
acter and  powers  of  the  officer  selected  as  the  final  depositary  of  the 
power.  There  is  not  a  word  in  it  devolving  the  whole  duty  of  leasing 
upon  the  superintendent  and  his  supervising  committee.  Xow, 
clearly,  when  the  ordinance  said  he  was  authorized,  it  did  not  mean 
he  was  comniaiitlcd,  wlicn  upon  him  fell  tlic  ini])ortant  dutv  of  con- 
'^CTucTiiTg  the  Ica.sc ;  and  if,  before  completion,  ho  should  discover 
strong  reasons  why  the  bargain  should  not  be  consummated^  cer- 
tSfflly  his  official  character  and  dut}-  would  require  him  to' pause, 
-aricl  not  be  compelled  forward  to  the  execution  of  the  paper  like  a 
mere  automaton. 

It  is  not  to  be  forgotten  that  the  ordinance  which  we  are  consider- 
ing, and  its  subject  matter,  have  relation  to  the  execution  of  a  pri- 
vate trust  reposed  in  the  city  by  the  will  of  Mr.  Girard,  and  not  to 
the  execution  of  merely  public  duties,  and  that  the  interests  of  the 
trust  are,  therefore,  to  be  protected  by  the  court. 

The  facts  of  this  case  furnish  also  an  ample  reason  for  the  inter- 
pretation now  given  to  the  ordinance.  We  should  be  glad,  for  the 
honor  of  those  concerned,  to  discredit  the  disgraceful  transactions 
stated  in  the  paper-book.  But  the  return  of  the  highest  officer  of  the 
city,  an  upright  citizen,  as  there  is  every  reason  to  suppose,  under 
his  solemn  oath,  founded  upon  the  report  of  a  highly  respectable 
committee,  and  upon  the  testimony  accompanying  it,  is  a  source  of 
information  we  cannot  reject  in  this  proceedins-.'  The  matters  thus 
presented,  proceeding  not  only  from  the  immediate  parties,  but  from 


38  COM. MON WEALTH   V.    HENRY.  §    I 

members  of  the  councils  also,  are  shocking  to  the  moral  sense  of 
good  men.  A  committee  of  three  members  of  the  councils  was  ap- 
pointed to  investigate  certain  charges  against  the  resident  agent  in 
Schuylkill  count}-,  and  also  to  report  upon  the  propriety  of  making 
certain  leases.  The  lease  claimed  by  the  relators  is  one  that  was 
recommended  by  the  committee.  Strange  to  say,  the  conduct  of  this 
committee  became  the  subject  of  investigation,  and  of  the  report  of 
the  committee  of  five  before  referred  to. 

The  report  of  the  final  committee  of  investigation  contained  the 
following  language:  "Alessrs.  Vandyke  and  Wadleigh  were  appli- 
cants for  tile  most  valuable  of  them  (the  coal  lands).  We  append 
their  testimony,  which  will  fully  explain  the  conclusions  to  which 
we  have  come  in  regard  to  these  gentlemen.  They  both  admit  that 
they  ottered  $1,000.00  to  the  resident  agent  of  the  city  if  they  should 
succeed  in  obtaining  the  lease.  They  endeavor  to  defend  this  offer 
by  refined  distinctions,  and,  rejecting  Mr.  Kearcher's  mode  of  stating 
what  occurred  with  some  apparent  feeling,  they  adopt  another, 
Vv'hich  is  perhaps  stronger  against  them.  We  cannot  doubt  the  im- 
pression which  their  own  account  of  the  matter  wull  have  upon  all 
correct  and  right-minded  men." 

After  exonerating  Mr.  Kearcher,  the  agent,  the  committee  con- 
clude by  recommending  that  the  resolutions  granting  leases  to 
Messrs.  Vandyke  and  Wadleigh  be  vacated.  The  resolutions  here 
referred  to  appear  by  the  paper-book  to  be  those  of  the  committee 
on  the  Girard  estate,  not  of  the  councils. 

In  reference  to  the  conduct  of  the  committee  of  three  by  whom  the 
lease  to  the  relators  was  recommended,  the  report,  after  referring  to 
matters  quite  unfavorable  to  two  of  the  members,  proceeds :  "The 
evidence  in  regard  to  this  latter  gentleman  is  so  conclusive,  and  his 
failure  to  attend,  or  ofl^er  to  deny  or  rebut  it,  confirm  it  so  decidedly 
that  we  deem  it  unnecessary  to  make  comments  upon  it.  In  boldly 
and  unshrinkingly  pressing  his  own  corrupt  demands  he  did  not  hesi- 
tate to  bring  the  whole  of  the  conmiittee  on  Girard  estates  under 
suspicion.  Such  conduct  is  a  disgrace  to  the  councils,  and  should 
meet  with  prompt  and  immediate  punishment." 

Without  further  comment  upon  these  unwarrantable  transactions, 
it  is  sufficient  to  say,  if  ever  a  public  officer  was  justified  in  declin- 
ing to  consummate  a  contract,  o1)tained  by  what  apj^eared  to  him  to 
be  corrupt  i)ractices,  and  therefore  presumptively  injurious  to  the 
public,  it  IS  this  case. 

I'.ut,  were  the  ordinance  imperative  in  its  terms,  there  is  still  a 
ground  that  requires  a  peremptory  mandamus  to  be  refused.  ^_^ja— 
court  will  knowingly  suffer  itself  to  be  the  instrument  to  carry  into 
"TrjrtTTTtion  a  rr)ttcn  and  unsound  barganTi'cSpocially  where  if  affects 
nn  important  private  trust.  It  is  said  this  is  not  a  proceccTTng  in 
rqnity,  but  that  mandannis  is  a  writ  at  law,  and  that  therefore  the 
court  cannot  refuse  its  aid.    This  is  true  where  the  relator  establishes 


S    I  .MANDAMUS,    I.\     GENERAL.  39 

his  title  to  the  writ.  lUit  it  is  settled  that,  to  found  the  application, 
the  law  requires  the  applicant  to  establish  a  specific  legal  right,  as 
well  as  the  want  of  a  specific  legal  remedy ;  and  also  that  the  writ 
will  be  granted  only  in  extraordinary  cases  to  prevent  a  failure  of 
justice.  James  v.  Commissioners,  i  Harris  (Penn.)  75;  Common- 
wealth V.  Commissioners,  2  Penn.  518;  Heffner  v.  Commonwealth, 
4  Cas.  (Penn.)  i[2.  Now  we  have  before  us  no  case  of  a  specific 
and  fixed  legal  right,  but  an  inchoate  contract  which  can  be  perfected 
only  by  the  very  remedy  the  relators  are  seeking  through  the  man- 
damus. The  title,  therefore,  of  the  relators,  to  have  a  perfect  lease, 
depends  upon  the  fairness  of  their  conduct  in  procuring  themselves 
to  be  presented  as  proper  parties  to  receive  it.  Their  title  to  have 
the  mandamus  is  the  same  they  must  present  to  have  the  lease ;  for, 
without  a  title  to  have  the  lease,  they  have  no  title  to  the  writ.  It  is 
just  at  this  point  they  fail.  The  evidence  shows  a  proceeding  to  cor- 
rupt the  channel  through  which  their  application  must  come,  and  a 
corrupt  proceeding  by  the  sub-committee  by  whom  it  was  recom- 
mended. The  application,  therefore,  appears  before  us  with  such  a 
taint  we  are  justified  in  refusing  to  exercise  the  high  and  extraor- 
dinary powers  invoked  b}-  this  writ. 

Writ  refused.    Judgment  upon  demurrer  for  defendant. 

Thompson,  J.,  dissented,  and  filed  a  dissenting  opinion. 

Woodward,  C.  J.,  concurred. 


// 


CRITTENDEN  v.  REILLY. 
T893.  Supreme  Court  of  INIichigan.  97  Mich.  637,  57  N.  W.  192. 

Petition  by  Chas.  T.  Crittenden  as  guardian,  etc.,  for  mandamus 
to  compel  Cornelius  J.  Reilly,  presiding  as  circuit  judge  of  Macomb 
county,  to  vacate  an  order  dismissing  an  appeal  from  the  probate 
court.     Denied. 

The  appeal  was  from  an  order  of  the  probate  court  admitting  a  will 
to  probate.  After  the  dismissal  of  the  appeal  relator  suiTered  more 
than  a  year  to  expire,  which  is  the  time  limited  by  3  How.  Stat.  8686, 
for  bringing  certiorari. 

Per  curiam:  The  relator  had  a  remedy  by  certiorari  which  has 
been  lost  by  lapse  of  time,  and  a  writ  of  mandamus  will  not  be 
granted  to  extend  the  time  beyond  that  limited  for  bringing  cer- 
tiorari. 

Mandamus  will  not  issue. 


i 


40  SHIRLEY    V.    TRUSTEES.  ^     I 

See  also  State  v.  Buhler,  90  IMo.  560,  3  S.  W.  68;  Ansonia  v.  Studley,  67 
Conn.  170,  34  Atl.  1030;  Fishel  v.  Circuit  Judge,  97  Mich.  609,  57  N.  W.  188; 
Reynolds  v.  Crook,  95  Ala.  570,  11  So.  Rep.  412.  Compare  State  v.  Bates,  38 
S.  Car.,  17  S.  E.  28. 

Laches  is  ordinarily  held  to  be  good  ground  for  refusing  to  issue  Man- 
damus. Rice  V.  Bd.  of  Canvassers,  50  Kas.  149,  2^  P^c.  134;  State  v.  Fin- 
ley,  74  Mo.  App.  213;  People  v.  Syracuse,  78  N.  Y.  56;  State  v.  Cappeller,  39 
Ohio  St.  455 ;  Taylor  v.  Gillette,  52  Conn.  216 ;  State  v.  Jennings,  48  Wis.  549, 
/J  N.  W.  641. 


10.     Necessity  of  demand  and  refnsal. 

SHIRLEY  V.  TRUSTEES. 

1892.     Supreme  Court  OF  C.\LiFORNi.\.     Cal.  (Unreported)  31  Pac. 

Rep.  365. 

Belcher,  C. — This  is  an  appeal  by  the  defendants  from  a  judg- 
ment awarding  the  plaintiff  a  peremptory  writ  of  mandate,  and  the 
case  is  brought  here  for  review  on  the  judgment  roll.  The  court 
found  the  facts  of  the  case  to  be  in  substance  as  follows :  _In  July, 
1890,  the  defendants  were  the  duly  elected,  qualified  and  actTiig 
trustees,  and  CQiisdhited  the  trustees  of  Cottonwood  School  District 
hi  San  Benito  county.  The  i)laintiff  was  duly  qualifi'ed  school 
teacher,  and  on  July  i,  1890,  was  employed  by  the  defeii^aiits^to 
teach  the  pupils  of  the  Cottonwood  school  for  the  term  of  four 
months,  commencing  on  the  14th  day  of  that  month.  Slie  was  to 
receive  and  agreed  to  accept,  for  her  services,  $60.00  per  month, 
payable  monthly  by  orders  drawn  by  the  board  on  the  county  super- 
intendent of  schools.  AUthe  time  mentioned  she  entered jiiioalthfi 
performance  of  her  duties  as  such  tcachci-,  and  continued  to  teach 
the  school  until  August  23d,  a  period  of  six  wrecks,  whoil  the  de- 
fendants,  as  such  board  of  trustees,  wrongfully  and  without  cause 
discharged  and  dismissed  her  from  the  school,  and  prevented  her 
thereafter  from  teaching  the  school  and  completing  her  part  of  the 
contract.  She  was  ready,  willing,  able,  and  competent  to  teach  the 
school  and  complete  her  part  of  the  contract,  and  repeatedly  offered 
to  so  do,  but  the  defendants,  as  such  board  of  trustees,  prohibited 
and  prevented  her  from  occupying  the  school-house  and  teaching  the 
school  afler  August  23rd.  ( )n  August  23rd.  a  majority  of  the 
boarfl  prr)pose(l  to  her  that  she  teach  the  school  two  weeks  longer, 
if  at  the  end  of  the  two  weeks  she  would  resign  her  place  as  teacher. 
She  assented  to  this  proposition,  but  demanded  as  a  condition  of  her 
rcsignatirm  tliat  she  be  paid  her  salary  for  the  full  term  of  four 
months.  The  board  rffnsed  to  pay  the  full  amoimt,  but  drew  an 
order  in  Ivt  favor  for  $00.00,  the  sum  being  in   full  iia\nient  of  the 


§    I  MANDAMUS,    IN     GENERAL.  4I 

time  she  had  already  taught.  "No  demand  was  made  by  plaintiff  on 
defendants  after  the  expiration  of  said  four  months,  nor  was  any 
demand  for  the  full  term's  salary  made  by  her,  other  than  as  a  con- 
dition for  her  resignation,  as  above  set  forth,  and  such  demand  was 
made  on  August  23rd,  1890."  "Said  discharge  of  plaintiff  was  for 
the  alleged  cause  of  incompetency  as  a  teacher,  and  for  cruel  and 
unusual  punishment  of  a  pupil,  but  plaintiff  was  all  during  said 
time  competent  as  a  teacher,  and  performed  and  fulfilled  her  duties 
properly  as  such,  and  did  not  punish  said  child  either  in  a  cruel  or 
unusual  manner,  nor  for  any  purpose  except  for  just  cause,  and  to 
a  moderate  extent,  but  said  board  of  trustees  in  discharging  plaintiff 
acted  under  the  honest  belief  that  plaintiff  had  punished  the  child  ex- 
cessively, and  in  a  cruel  and  unusual  manner."  The  court  further 
found  that  the  sum  of  $150.00  was  due  the  plaintiff,  and  unpaid,  for 
the  balance  of  her  salary  under  her  contract,  and  as  conclusions  of 
law :  "That  plaintiff,  by  wrongful  acts  of  defendant  in  ignoring  the 
contract,  and  expelling  plaintiff  from  said  school,  was  exonerated 
from  making  formal  demand  for  the  issuance  of  the  order  on  the 
superintendent  of  schools.  That  plaintiff  is  entitled  to  the  peremp- 
tory writ  of  mandate,  compelling  defendants,  as  said  board  of  trus- 
tees, to  issue  to  plaintiff  the  order  on  the  said  superintendent  of 
schools  of  San  Benito  county  for  the  sum  of  $150.00,  but  without 
costs."  Judgment  was  accordingly  so  entered.  It  is  alleged  in  the 
complaint,  and  not  denied,  that,  notwithstanding  the  action  of  the 
trustees  in  discharging  her,  plaintiff  entered  another  house  within 
the  school  district,  and  convenient  for  the  pupils  therein,  and  taught 
the  pupils  of  the  district  continuously  from  tlie  time  of  her  discharge 
up  to  October  31st,  making  four  full  month's  service  as  a  teacher, 
and  thus  fulfilling  her  contract.  It  is  also  alleged  "that,  at  the  ex- 
piration of  those  four  months,  plaintiff  demanded  of  and  from  the 
defendants,  the  same  board,  that  they  issue  to  her  the  order  for  the 
amount  due  to  her  upon  the  county  superintendent  for  payment 
thereof,  but  said  board  refused,  and  still  refuses,  to  issue  said  order, 
or  to  pay  the  same,  or  any  part  thereof."  And  it  is  said  in  the  brief 
filed  on  behalf  of  the  respondent  that  such  a  demand  was  in  fact 
made.  The  allegation  was,  however,  denied  by  the  answer,  and  the 
finding  on  it  cannot  therefore  be  controverted  here.  Upon  the  facts 
shown,  it  is  entirely  clear  that  respondent  w^as  entitled  to  full  pay- 
ment for  her  four  months'  service ;  for,  as  said  in  Webster  v.  Wade, 
.19  Cal.  291,  "the  law  is  well  settled  that,  where  a  contract  is  made 
for  a  fixed  period,  if  the  employer  discharge  the  servant  before  the 
termination,  without  good  cause,  he  is  still  liable,  and  the  servant 
may  recover  the  stipulated  wages."  The  appellants,  however,  con- 
tend— and  this  is  the  only  point  made  for  the  reversal  of  the  judg- 
ment— that  the  respondent  was  not  entitled  to  the  relief  demanded, 
for  the  reason  that  no  express  demand  was  made  upon  them  to  per- 
form the  act  sought  to  be  enforced  before  the  proceedings  were  in- 


42  SHIRLEY  V.   TRUSTEES.  §    I 

stituted.  This  point  seems  to  be  well  taken.  In  People  v.  Romero, 
rS  Cal.  90,  the  court,  by  Field,  C.  J.,  said :  "To  authorize  a  man- 
damus it  must  appear  not  only  that  the  performance  of  the  act,  to 
enforce  which  the  writ  is  asked,  is  a  duty  resulting  from  the  office, 
duty,  trust  or  station  of  the  party  to  whom  the  writ  is  to  be  directed, 
but  that  the  performance  has  been  requested  and  refused."  And  the 
learned  justice  then  quoted  with  approval  from  Tapping  IN'Iand.,  as 
follows:  "It  is  ail  imperative  rule  of  the  law  of  mandanins  that, 
previously  to  the  making  of  the  application  to  the  court  for  a  writ 
to  command  the  performance  of  any  particular  act,  an  express  and 
distinct  demand  or  request  to  perform  it  must  have  been  made  by 
the  prosecutor  to  the  defendant,  icho  must  have  refused  to  comply 
with  such  command,  either  in  direct  terms,  or  by  conduct  from 
which  a  refusal  can  be  conclusively  implied;  it  being  due  to  the  de- 
fendant to  have  the  option  of  either  doing  or  refusing  to  do,  that 
which  is  required  of  him,  before  an  application  can  be  made  to  the 
court  for  the  purpose  of  compelling  him."  This  language  was  again 
quoted  with  approval  in  Oroville  etc.  R.  Co.  v.  Count}-,  37  Cal.  362, 
and  the  same  rule  w^as  declared  in  Price  v.  Co.,  56  Cal.  434.  The 
rule  thus  declared  seems  to  be  general,  and  to  apply  to  all  cases,  ex- 
cept when  the  thing  to  be  done  is  a  duty  to  the  public  in  which  the 
petitioner  has  no  special  interest.  "In  such  case,"  it  has  been  said, 
"the  law  itself  stands  in  lieu  of  a  demand,  and  the  omission  to  per- 
form the  required  duty,  in  place  of  a  refusal."  High  Ex.  Leg.  Rem., 
$5  13.  The  court  below  based  its  conclusion,  as  w^e  have  seen,  upon 
the  fact  "that  plaintiff,  by  the  wrongful  acts  of  defendants  in  ignor- 
ing the  contract,  and  expelling  plamtifif  from  said  school,  was  exon- 
erated from  making  formal  demand."'  But  we  do  not  think  this 
conclusion  can  be  sustained.  We  advise  that  the  judgment  be  re- 
versed, and  the  cause  remanded  for  a  new  trial. 

We  concur:  Haynes,  C.  ;  Temple,  C. 

Per  curiam:  For  the  reasons  given  in  the  foregoing  opinion  the 
judgment  is  reversed,  and  the  cause  remanded  for  a  new  trial. 


UNITED  STATES  ex  kel.  INS.  CO.  v.  AUDITORS. 

1 881.    U.  S.  CiKCui'i"  Court,  North.  Dist.  Illiinois. 

8  Fed.  Re]).  473. 

i^RUMMONU,  D.  J. — Tills  is  an  application  by  the  relator,  after  due 
notice,  for  a  ])eremi)tory  mandamus  against  the  defendants  to  take 
the  necessary  steps  inider  the  law  to  assess  a  tax  for  the  payment  of 
various  judgments  which  have  been  rendered  in  this  court  against 
the  town  of  ] Brooklyn,  Lee  county. 


15     I  -MANDAMUS^    IN    GENERAL.  43 

It  appears  by  the  petition  that  these  judgments  were  recovered 
I  tn  interest  coupons  oii  bonds  issued  by  the  town  of  Brooklyn  to  the 
Chicago  &  Rock  River  R.  R.  Co.,  in  pursuance  of  law,  and  in  accord- 
ance with  a  vote  of  the  electors  in  the  town.  It  also  appears  that 
the  main  question  involved  in  these  various  judgments  has  in  one  of 
the  cases  been  decided  by  the  Supreme  Court  of  the  U.  S.,  affirming 
the  validity  of  tlie  judgment  of  this  court.  Brooklyn  v.  Ins.  Co.,  99 
U.  S.  z'^^. 

It  is  also  alleged  and  admitted  that  the  town  has  no  property  or 
effects  which  could  be  reached  by  execution  on  the  judgments.  It  is 
rdso  stated  that  the  judgments  are  in  full  force,  and  in  no  part  sat- 
isffed,  wTncli^sTafement  has  not  been  denied  by  the  answer  which  has 
been  put  in.  It  is  averred  that  the  defendants  have  neglected  and 
refused  to  make  provision  for  the  payment  of  the  interest  on  the 
bonds,  and  that  a  formal  demand  for  the  payment  of  the  several 
judgments  would  be  unavailing.  This  is  not  with  the  necessary  ex- 
])licitness  denied  by  the  answer.  There  can  be  no  doubt  that  these 
judgments  are  a  town  charge,  within  the  meaning  of  the  statute  of 
the  state  upon  the  subject.    Low'er  v.  United  States,  91  U.  S.  536. 

The  board  of  auditors  has  answered  the  petition,  and  states  merely 
that  it  is  not  advised  or  informed  whether  the  town  has  neglected  or 
refused  to  pay  the  judgment,  or  threatened  that  it  will  not  pay  the 
same,  and  so  denies  the  truth  of  the  same.  The  main  defense  set 
forth  to  the  answer  in  the  petition  is  that  a  demand  has  not  been 
made  by  the  relator,  or  by  anyone  on  his  behalf  for  the  payment  of 
these  judgments,  prior  to  the  time  of  the  filing  of  the  petition  in  this 
case.  The  judgments  have  been  ofifered  in  evidence,  and  there  is 
no  controversy  about  the  existence  of  the  judgments  and  their  non- 
payment. The  town  clerk  has  demurred  to  the  petition,  and  the  pe- 
tition, answer  and  demurrer  have  been  argued  together  by  the  coun- 
sel and  considered  by  the  court,  and  the  question  is,  whether,  upon 
what  has  been  regarded  as  the  conceded  facts  of  the  case,  the  relator 
is  entitled  to  a  peremptory  mandamus,  requiring  the  board  of  audi- 
tors and  the  clerk  to  proceed  in  conformity  with  law.  The  law  re- 
quires, for  the  purpose  of  meeting  a  charge  against  the  town,  that 
the  board  of  auditors  and  clerk  should  duly  proceed,  in  the  manner 
pointed  out  by  the  statute,  to  cause  the  property  of  the  town  to  be 
assessed  for  its  payment.  Rev.  Stat.  111.  (Cothran's  Edition)  1507, 
1508,  "Township  Organization,"  §§  115,  118,  120,  121,  124. 

The  two  facts  which  must  be  considered  as  established  by  the 
pleadings  in  this  case,  and  by  the  evidence,  are  that  these  judgments 
were  recovered  as  stated  in  the  petition  :  that  they  have  not  been  paid 
either  in  wlwle  or  in  part ;  and  that  no  steps  have  been  taken  by  the 
proper  authorities  in  the  town  to  cause  their  payment  by  the  imposi- 
tion of  a  tax  upon  the  property  of  the  town.  One  of  the  judgments 
was  rendered  more  than  five  years  since ;  one  more  than  two  years ; 
and  the  others  during  the  last  vear.     AlthouHi  it  was  the  dutv  of 


44  UNITED  STATES  EX  REL,   INS.   CO.  V.  AUDITORS.  §    I 

the  defendants  or  the  board  of  auditors  and  the  clerk,  under  the  law, 
to  adopt  measures  long  ago  to  cause  the  payment  of  these  judg- 
ments, rendered  in  March,  1876,  in  June,  1879,  and  in  March,  1880, 
yet  nothing  has  ever  been  done,  and  the  only  serious  question,  as  I 
view  the  subject,  is,  whether  it  is  necessary  that  a  demand "^hottki 
"be  made  in  form  by  the  relator,  upon  the  authorities  of  the  town,  for 
their  payment,  or  to  proceed  in  the  manner  pointed  out  by  law  to 
cause  the  payment  of  these  judgments.  And  I  think_rL_was-JM)t. 
These  judgments  were  all  recovered  after  ^le  service  of  process 
upon  the  authorities  of  the  town,  and  after  ample  opportunity  for 
defense.  One  of  them  involving,  as  I  understand,  the  principle  of 
all  the  cases,  was  finally  decided  by  the  Supreme  Court  of  the  U.  S. 
adversely  to  the  defense  set  up  by  the  town. 

It  must  be  presumed,  therefore,  that  these  defendants  knew  of  the 
existence  of  these  various  judgments,  and  that  it  was  their  duty  to 
proceed  in  conformity  with  the  law,  and  that  they  have  failed  to  do 
so.  It  would  seem,  therefore,  to  be  a  vain  act  to  demand  that  they 
should  proceed  under  the  law,  when  they  have  done  nothing  for  a 
series  of  years.  The  only  controversy  about  any  of  the  judgments 
is  that  rendered  in  December  last.  But,  while  it  is  true  that  a  court 
will  not  generally  issue  a  mandamus  to  compel  the  performance  of 
an  act  which  it  is  merely  anticipated  the  defendant  will  not  perform, 
still,  if  the  defendant  has  shown  by  his  conduct  that  he  does  not 
intend  to  perform  the  act,  and  that  fact  is  apparent  to  the  court,  it 
would  be  a  work  of  supererogation  to  require  that  a  demand  should 
be  made  for  its  performance.  Here  the  only  effect  of  issuing  the 
writ  of  mandamus  is  to  require  tlie  authorities  of  the  town  to  do 
what  by  law  they  are  obliged  to  do.  The  board  of  town  auditors  and 
the  clerk  are  each  a  part  of  the  machinery,  so  to  speak,  by  which 
the  judgments  are  to  be  satisfied.  The  clerk  is  himself  a  member 
of  the  board  of  auditors.  And,  tlurcf. nc,  it  seems  to  me  to  be 
proper  and  reasonable,  and  nothing;  iimn-  than  the  relator  has  a 
right  to  claim  of  the  court,  thaJL.an  order  should  be  issued  requiriiTg; 
them  to  do  what  the  law  says,  in  such  a  case  as  this,  they  must  do. 

According  to  my  view  of  the  case  there  is  really  no  material  fact 
upon  which  it  would  be  necessary  to  take  the  verdict  of  a  jury.  The 
judgment  of  this  court  must,  therefore,  be  for  the  relator,  both  on 
the  answer  of  the  board  of  auditors  and  the  demurrer  of  the  clerk. 

The  writ  will  accordingly  be  directed  to  issue. 

Compare  Attorney  General  v.  Boston,  123  Mass.  460. 

AltlioiH^h  tlierc  appears  to  be  no  small  amount  of  conflict  between  the  cases 
on  this  pf)int,  the  rule  laid  down  by  the  weight  of  authority  is  that,  where 
f.cncra!  public  interests  are  involved,  no  demand  is  necessary,  the  law  itself 
serving  as  a  continual  demand;  but  where  merely  private  rights  are  affected, 
a  precedent  demand  and  refusal  must  be  shown. 

Sec  Oroville,  etc.,  R.  Co.  v.  County,  37  Cal.  354;  Citv  of  Cairo  v.  Everett, 
to;  III.  75;  Lake  Frir.  etc.,  R.  Co.  v.  State,  139  Ind.  158,  38  N.  E.  596;  Dobbs 


^     I  MANDAMUS,    IN    GENERAL.  45 

V.  Stauffer,  24  Kan.  127;  Cliicago,  etc.,  R.  Co.  v.  Commissioners,  49  Kan.  399, 
30  Pac.  456;  Swarthout  v.  McKnight,  99  Mich.  347,  S8  N.  W.  315;  State  ex 
rcl.  V.  Slavens,  75  Mo.  508;  State  v.  Eberhardt,  14  Neb.;  201,  15  N.  W.  320 ; 
People  V.  Albany  Hospital,  11  Abb.  Prac.  N.  S.  (N.  Y.)  4;  State  v.  Lehre,  7 
Rich.  Law  (S.  Car.)  234;  State  v.  Racine,  22  Wis.  258. 

"The  law  does  not  require  a  useless  thing.  It  points  out  the  whole  duty, 
with  the  time  and  place.  This  is  equivalent  to  a  demand.  An  omission,  or  a 
neglect  of  that  duty,  and  still  more,  a  performance  attempted,  but  done  in  a 
manner  which  that  law  says  is  not  a  performance,  is  considered  equivalent  to 
a  refusal."     Woodward,  J.,  in  State  ex  rcl.  v.  Bailey,  7  Iowa  390. 


II.     Mandamus  will  not  lie  to  control  discretionary  acts. 

MARCUM  V.  BALLOT  COMMISSIONERS. 

1896.     Supreme  Court  of  Appeals  of  West  \"irginia 
42  W.  Va.  263,  26  S.  E.  281. 

Petition  by  W.  W.  Marcum  for  mandamus  against  the  ballot 
commissioners  of  Lincoln,  Logan,  Mingo  and  Wayne  counties. 

BR.A.NNON,  J. — A  question  presents  itself,  which,  I  confess,  has 
greatly  perplexed  me,  requiring  close  thought  and  nice  discrimination 
for  its  solution.  Does  mandamus  lie  in  this  case?  Until  our  present 
election  law,  called  the  "Australian  Ballot",  courts  did  not  know 
political  parties  as  such.  They  had  no  legal  status  as  such  in  legal 
contests  except  in  Congress  and  other  political  bodies ;  but  under  the 
new  election  law  they  have  distinctive  legal  existence  whenever 
questions  arising  under  it  come  before  the  courts.  Two  _certifica.te.s 
of^nomination  for  judge  of  the  eighth  circuit,  emanatingTrom  two 
"conventions,  each  ^claiming  to  be  the  true  Democratic  nominating 
convelition,  were  presented  to  the  ballot  commissioners  of  Wayne 
county,  each  asking  a  place  on  the  official  ballot,  in  exclusion  of  the 
other.  The  commissioners  were  bound  to  decide  which  should  go  on 
the  ballots  as  the  representative  nominee  of  the  party.  They  deter- 
mined in  favor  of  one.  The  plaintiff  seeks  to  have  this  court  com- 
pel the  ballot  commissioners  "to  place  him  on  the  ballots,  thus  revers- 
ing fh'e  action  of  the  ballot  commissioners.  It  is  said  this  cannot  be 
Clone  by  mandamus,  because  the  decision  by  the  board  of  ballot  com- 
missioners between  the  competing  nominations  involved  discretion — 
involved  a  decision  on  facts,  a  quasi-judicial  function — and  that 
mandamus  does  not  lie ;  and  that  recourse  must  be  had  to  a  writ  to 
review  this  action — an  appellate  process — and  that  this  writ  is  cer- 
tiorari. 

I  admit  the  doctrine  laid  down  in  State  v.  County,  33  W.  Va.  589, 


46  MAKCUM   V.    FALLOT   COM  M  ISSIOXKKS.  §     I 

II  S.  E.  'JT.,  WraX  mandamus  zvill  not  lie  to  control  the  exercis£.j)l 
discretion  of  any  court,  board  or  officer,  zuhen  the  act  complained  of 
is-vither  JudicidT'^df' quasi- judicial  in  its "naiure";  That  the  inferior 
triblJTuil~may''dc~''coTiipelTed  to  act  in  such  a  case  if  it  unreasonably 
neglects  or  refuses  to  do  so,  but,  if  it  does  act,  the  propriety  of  its 
action,  however  erroneous,  cannot  be  questioned  or  controlled  by 
rnandanins, — followed  in  Miller  v.  County,  34  W.  Va.  285,  12  S.  E. 
702,  and  State  v.  Herrald,  36  W.  Va.  721,,  15  S.  E.  974.  But  it  is 
equally  zvell  settled  that,  if  the  act  to  be  performed  is  not  one  of  legaj 
discretion — that  is,  judicial  in  its  nature — but  is  merely  ministerial 
in  its  nature,  mandamus  zvill  lie.  Board  v.  Mintburn,  4  W.  Va.  300 ; 
Doolittle  V.  County,  28  W.  Va.  158;  full  note,  Dane  v.  Derby,  89 
Am.  Dec.  732.  It  turns,  then,  on  the  character  of  the  act.  The 
board  of  ballot  commissioners  is  not  a  court,  but  a  merely  ministerial 
body.  But  is  its  function  of  admitting  the  names  of  nominees  to  a 
place  on  the  official  election  ballots  in  nature  one  of  discretion,  judi- 
cial in  its  nature,  or  merely  ministerial? 

A  ministerial  act  is  one  zvhich  a  person  performs  in  a  given  state 
of  facts,  in  a  prescribed  manner,  in  obedience  to  the  mandate  of  legal 
authority,  zvitlwut  regard  to  his  ozun  judgment  upon  the  propriety  of 
the  act  being  done.  Merrill  Mand.,  §  30 ;  Flourney  v.  City,  79  Am. 
Dec.  468,  and  note;  Security  Co,  v.  Fyler  (Conn.),  22  Atl.  494. 
Chapter  3,  Code  1891,  provides  how  nominations  for  public  office 
shall  be  made  and  certified  to  be  put  on  the  ballots,  and,  in  section 
33,  says  that  it  shall  be  the  duty  of  the  ballot  commissioners  to  pro- 
vide ballots  for  every  election,  "and  cause  to  be  printed  on  the  bal- 
lots the  names  of  every  candidate  whose  name  has  been  certified  to 
or  filed  with  the  clerk  of  the  circuit  court  in  the  manner  provided 
in  this  chapter."  Now,  I  confidently  assert  that,  when  a  name  of  a 
candidate  for  office  so  certified  comes  before  this  board,  it  is  its 
bounden  duty  to  put  it  on  the  ballot,  and  that  this  duty  is  ministerial. 
because  the  board  has  no  discretion  as  to  putting  it  on.  IMinisterial 
is  the  nature  of  the  duty  of  the  board  when  the  certificate  of  but  one 
nomination  is  before  it.  But,  when  a  second  certificate  of  nomina- 
tion comes  before  the  board,  does  it  at  once  chano:e  the  nature  of 
the  duty  from  what  it  was  before,  simply  ministerial,  into  one  of 
judicial  nature?  Here  the  question  is  close  and  difficult.  Notice 
that  the  above  definition  of  a  ministerial  act  says  it  is  ministerial 
when  the  officer  or  the  tribunal  has  no  discretion  as  to  the  propriety 
or  impropriety  of  doinef  the  act,  but  must  do  it;  that  is,  when  he  has 
no  power  to  say  whether  he  will  or  will  not  do  the  act,  it  is  minis- 
terial ;  Init  when  he  has  power  or  discretion  to  do  or  not  do  the  act, 
as  liis  judjrmcnt  on  tlic  facts  directs  him,  the  act  is  judicial  in  its  na- 
tnic,  not  ministerial,  Merrill  Mand.,  §§  30-33.  Clearly,  this  board 
had  no  discretion  to  say  it  would  ]iut  no  name  on  the  ballot,  and, 
therefore,  the  ireneral  nature  of  its  function  was  ministerial.  But 
tin's  does  not  dispose  of  our  trouble,  for,  ihouQh  the  c^cneral  nature 


§     I  MANDAMUS,    IN    GENERAL.  4/ 

of  making  up  election  ballots  by  commissioners  be  ministerial,  yet  it 
does  not  follow  that  mandamus  inevitably  lies ;  for  "it  is  not  the 
office  of  the  writ  to  control  discretion,  even  in  the  performance  of 
ministerial  duties,"  says  Spell.  Mand.,  §  1395.  If,  to  discharge  that 
ministerial  duty,  it  becomes  necessary  for  the  tribunal  to  decide  on 
law  and  facts  between  contesting  claims  or  rights,  it  becomes  judi- 
cial in  its  nature.  \Mien  the  two  contestant  nominees  were  both 
before  the  board,  the  matter  became  a  lis,  a  controversy  between  two 
parties  upon  their  respective  rights,  which  called  on  the  board  to 
investigate  facts,  and  upon  them  to  say  which,  in  the  eye  of  the  law 
of  the  election,  was  entitled  to  the  Democratic  place  on  the  ballot. 
This  was  then  a  judicial  question,  called  quasi-judicial  when  the 
matter  is  before  an  officer,  or  a  tribunal — not  a  court ;  and  such  a 
question  .cannot  be  made  the  basis  of  a  mandamus  at  common  law. 

As  seen  above,  the  definition  of  a  ministerial  act  says  it  is  one 
that  must  be  done,  without  any  right  on  the  part  of  the  officer  or 
tribunal  called  upon  to  perform  it  to  say  whether  it  ought  or  ought 
not  to  be  done.  Then,  what  act  is  that  in  this  case?  To  solve  this 
case,  we  must  know  what  act  it  is  on  the  part  of  the  board  about 
which  it  must  have  no  discretion  to  do  or  not  to  do  it,  which  will 
justify  the  mandamus.  Is  it  the  act  of  the  board  in  putting  some 
name  for  judge  on  the  Democratic  ticket,  or  is  it  the  act  of  saying 
which  is  the  true  Democratic  nominee,  between  Marcum  and  Har- 
vey— in  other  words,  the  act  of  putting  or  not  putting  Marcum's 
name  on  it,  that  being  the  particular  act  sought  to  be  enforced  by 
the  mandamus  ?  If  it  were  the  former,  mandamus  would  lie,  because 
the  general  nature  of  the  duty  of  putting-  nominees  on  a  ticket  is 
ministerial ;  but,  obviously,  the  particular  thing  which  the  mandamus 
seeks  to  have  done  is  the  insertion  of  Marcum's  name  on  the  ticket, 
and,  as  the  board  exercised  discretion  as  to  that,  because  called  upon 
to  decide  which  of  the  two  nominations  was  the  true  one,  entitled  to  a 
place  on  the  ticket,  that  act  is  quasi-judicial,  and  mandamus  could 
not  enforce  it  under  the  common  law  of  mandamus.  I  can  see  that 
it  may  be  said  that  the  act  of  deciding  between  the  two  nominations 
is  what  is  known  in  the  law  of  mandamus  as  the  "preliminary  ques- 
tion," and  that,  though  the  decision  of  such  a  "preliminary  ques- 
tion" involve  matters  judicial  in  their  character,  that  does  not  ex- 
clude the  use  of  the  writ,  because  its  decision  is  a  mere  incident, 
leading  up  to  the  mere  function  or  act,  that  of  making  out  the  bal- 
lots, as  it  must  put  some  name  on,  and,  to  do  so,  must  inevitably  de- 
cide which  of  these  names  it  will  recognize ;  and  it  is  the  main  or 
ultimate  act — the  putting  a  name  on — which  gives  cast  to  the  act. 

It  is  true  that,  in  law.  the  character  of  a  purely  "preliminary  ques- 
tion," though  it  be  judicial,  does  not  test  the  right  to  use  the  writ 
of  mandamus.  Merrill  Mand.,  §  44,  says :  "It  often  happens  that  a 
ministerial  duty  exists  which  may  be  enforced  by  mandamus  pro- 
vided certain  facts  exist.     It  becomes  important  to  decide  whether 


48  MARCUM   V.   BALLOT  COMMISSIONERS.  §    I 

the  determination  as  to  the  existence  of  these  facts  is  a  judicial  or 
a  ministerial  one.  Hardly  a  case  can  be  imagined,  when  a  public 
officer  or  tribunal  is  required  to  take  action  upon  the  happening  of 
an  event  or  the  existence  of  a  certain  condition  of  things,  wherein 
there  is  not  some  discretion  to  be  used  as  to  whether  the  event  has 
happened,  or  the  condition  of  things  has  occurred.  Any  board  or 
tribunal  must  determine  whether  the  proper  parties  are  before  it, 
and  whether  the  facts  calling  for  its  action  exist.  If  such  deter- 
mination is  judicial,  and  is  adverse  to  taking  any  action,  such  officer 
or  board  cannot  be  called  on  to  do  an  act  which  it  is  his  duty  to  do 
only  in  case  the  facts  are  different  from  such  conclusion,  because 
no  judicial  determination  can  be  reviewed  or  overthrown  in  man- 
damus proceedings.  If  it  should  be  held  that  in  all  cases  the  deter- 
mination of  such  preliminary  questions  call  for  the  exercise  of  judi- 
cial discretion,  the  writ  of  mandamus,  as  has  often  been  said,  might 
as  well  be  expunged  from  the  remedial  code.  If  such  a  determina- 
tion is  not  an  exercise  of  judicial  discretion,  then  the  courts  can  re- 
view such  determination,  and,  finding  the  facts  to  justify  the  de- 
mand, can  order  the  performance  of  the  ministerial  act,  which  is  a 
duty  under  these  circumstances."  Just  here  I  note  that  this  doc- 
trine as  to  the  decision  on  a  "preliminary  question,"  not  rendering 
an  act  in  nature  ministerial  judicial,  is  asserted  by  Judge  White,  in 
Commissioners  v.  County,  2  \*a.  Cas.  9. 

Now,  apply  this  law  touching  a  preliminary  question  in  this  case. 
What  is  that  preliminary  question  in  this  case  to  which  that  law  ap- 
plies? It  was  whether  there  was  before  the  ballot  commissioners  a 
certificate  of  nomination  in  the  form  and  with  the  signatures  re- 
quired by  law ;  for,  if  there  was,  the  event  had  occurred,  or  the  con- 
dition of  things  existed,  giving  them  jurisdiction  to  act.  The  de- 
cision of  whether  it  was  in  proper  form,  and  signed  by  the  proper 
parties,  was  the  preliminary  question,  just  as  the  question  whether 
a  deed  presented  for  record  is  properly  authenticated  is  a  prelim- 
inary question  to  be  decided  by  the  clerk,  or  whctlier  a  surveyor's 
report  of  land  sold  for  taxes  is  in  proper  shape,  as  shown  in  the 
cases  of  Dawson  v.  Thurston,  2  Hen.  &  M.  (Va.)  132,  and  Manns 
V.  Givens,  7  Leigh  (Va.)  689,  and  Delaney  v.  Goddin,  12  Gratt. 
rVa.)  266.  In  deciding  on  the  certificate  questions  of  law,  in  a 
greater  or  less  degree,  will  have  to  be  decided  ;  but  they  are  only  on 
a  preliminary  question.  Thit.  having  decided  this  preliminary  ques- 
tion as  to  one  certificate,  the  board  finds  a  second  j^roper  on  its  face. 
What  then  ?  Another  question  springs  up :  Which  is  the  one  enti- 
tled to  appear  on  the  Democratic  ticket?  And  it  is  one  that  must  be 
decided  on  facts  outside  the  certificate.  The  question  addressed  to 
the  board  was:  .Shall  Marcum's  name  go  on  the  ticket,  or  Harvey's? 
In  the  decision  of  this  c|uestion  the  board  had  right  of  judgment,  be- 
cause it  nuist  i)ut  one  name  on,  not  both,  and  tliat  judgment  was  the 
result  of  fact  and  law.     Marcum's  mandanuis  seeks  to  put  his  name 


§     I  JMAiNDAMUS,     IX     CEXERAL.  49 

on  the  ticket,  and  tliat  is  just  the  act  about  doing  or  not  doing  which 
the  board  necessarily  had  discretion  to  exercise,  and  it  is  judicial  in 
character,  and  mandamus  does  not  lie  unless  the  new  statute  gives  it. 

I  call  attention  to  the  fact,  as  stated  by  Judge  Green  in  Doolittle 
V.  Court,  28  W.  \'a.  158,  that  the  old  A'irginia  cases  are  not  so  rigid 
against  mandamus  in  the  application  of  the  rule  that  it  lies  only  in 
matters  ministerial,  as  most  other  states,  as  is  seen  from  the  case  he 
cites.  And  I  call  attention  to  the  case  of  Dew  v.  Judges,  3  Hen.  & 
M.  (Va.)  I,  holding  mandamus  to  be  a  proper  remedy  to  compel  a 
court  of  record  to  reverse  its  action  in  appointing  a  clerk  in  room 
of  another,  and  restoring  that  other  to  his  office,  which  would  seem 
to  be  a  judicial  act.  Also,  Lewis  v.  Whittle,  'jj  Va.,  415.  Judge 
Green  said  in  the  Doolittle  case  that,  in  deciding  on  the  question 
whether  a  duty  is  ministerial,  our  courts  should  be  governed  largely 
by  the  spirit  of  the  decisions  found  in  Virginia.  Judge  Green  also 
said  it  seemed  to  him  that  it  was  the  general  nature  of  the  main  act 
to  be  performed  being  ministerial  that  tested  whether  the  writ  lies, 
under  the  Virginia  cases,  and,  the  act  of  putting  a  name  on  the  bal- 
lot being  ministerial,  we  might,  under  the  Virginia  cases,  w'ith  force 
hold  that,  without  the  aid  of  a  statute,  it  lies  in  this  case ;  but,  as 
Judge  Green  said  in  the  Doolittle  case,  the  Virginia  rule  needed 
modification,  and,  as  the  principle  is  almost  universal  elsewhere,  for- 
bidding mandamus  except  in  purely  ministerial  matters,  and  as  this 
court  has  often  said  that  this  is  the  true  rule,  I  come  to  the  conclu- 
sion that,  without  statute  aid,  mandamus  does  not  lie  in  this  case. 
Board  v.  Mintburn,  4  W.  Va.  300;  State  v.  Court.  33  W.  Va.  589, 
II  S.  E.  72;  State  V.  Herrald,  36  W.  Va.,  721,  15  S.  E.  974;  Miller 
V,  Court,  34  W.  Va.  285,  12  S.  E.  702. 

I  now  turn  to  another  feature  in  the  case,  arismg  under  the  stat- 
ute. §  89,  ch.  3,  Code  1891,  provides  that  any  officer  resting  under 
any  duty  under  that  charter  might  be  compelled  to  perform  it  by 
mandamus  from  the  circuit  court,  and,  to  promote  early  decision, 
dispensed  with  the  usual  preliminary  rule  and  commanded  a  speedy 
hearing.  That  was  not,  in  the  opinion  of  the  legislature,  sufficiently 
adequate  in  its  remedial  provisions,  for  in  1893  (Acts  of  1893,  ch. 
25)  it  greatly  enlarged  that  section,  by  providing  not  only  that 
officers  under  it  should  be  compelled  to  perform  their  duty  by 
mandamus  from  the  circuit  court,  but  gave  a  w^rit'  from  the  su- 
preme court  to  compel  any  officer  to  "do  and  perform  legally  any 
duty  herein  required  of  him."  It  requires  the  supreme  court  to  con- 
vene not  later  than  ten  days  from  the  date  of  the  writ  to  hear  it, 
giving  it  precedence  over  other  business,  and  requiring  it  to  be  de- 
termined within  five  days.  Was  it  intended  to  give  mandamus 
only  as  limited  by  the  common  law  before  this  statute — that  is, 
where  the  action  was  ministerial  only?  If  so,  why  the  need  of  this 
provision  where  the  common  law  already  gave  it  that  scope?  Was 
not  something  more  designed?    Did  not  the  lesfislature  reflect  that 


/. 


50  MARCUM   V.    BALLOT   COM.MISSIOXEKS. 

speedy  decision  was  essential  in  these  matters?  The  statute  shows 
this  in  the  features  above  spoken  of.  May  it  not  be  plausibly  said 
that  it  intended  to  enlarge  the  efficacy  of  the  writ  of  mandamus  by 
adding  it  to  certiorari  as  a  cumulative  remedy,  because  more  speedy  ? 
In  tlie  emergencies  arising  in  election  matters,  as,  for  instance,  in 
this  very  matTeFdf  "fhalcing;  up  the  ballots,  it  would  not  "do  To"  wait 
upon  the  slow  certiorari  in  the  circuit  court,  and  then  a  writ  of 
error  in  this  court.  The  day  of  election  would  be  past  before  judg- 
iiieht' final.  Application  to  the  court  of  appeals  by  certiorari"  could 
not  be  given  because  this  court  has  no  original  jurisdiction  in  cer- 
tiorari as  it  has  in  mandamus ;  and  hence  recourse  was  given  to 
mandamus  for  the  purpose  of  trying  all  questions  and  matters,  if  in 
nature  reviewable,  pertinent  to  the  subject,  treating  all  duties  of  offi- 
cers under  this  act  as  ministerial  for  this  purpose,  giving  the  writ  of 
mandamus  in  such  instances  as  cases  stti  generis.  And  note  that  sec- 
tion 89  declares  generally  that  "any  officer  or  person  upon  whom  any 
duty  is  devolved  by  this  chapter  may  be  compelled  to  perform  the 
same  by  writ  of  mandamus,"  not  using  the  adverb  "legally" ;  but, 
in  giving  the  writ  from  the  supreme  court,  it  grants  it  to  "compel 
an}-  officer  herein  to  do  and  perform  legally  an}'^  duty  herein  required 
of  him."  Why  use  the  word  "legally"  ?  The  power  to  compel  per- 
formance is  given  in  general  words  in  the  opening  of  the  section,  but 
later  in  the  section  it  grows  more  specific  by  using  the  word 
"legally",  thus  using  it  sedately.  We  must  give  every  word 
a  meaning,  especially  as  the  lawmaker  grew  more  emphatic 
or  precise  by  that  word.  It  is  an  implication  quite  strong  in 
connection  with  other  features  that  the  officer  should  be  compelled 
to  porform  all  duties,  of  every  cast,  ministerial  or  judicial,  according 
to  law.  It  seems  to  me  the  legislature  intended  to  use,  for  the  sake 
of  s])eedy  final  determination  in  the  court  of  last  resort,  the  only 
writ  available  under  the  circumstances,  mandannis,  as  a  writ  of  re- 
view, to  operate  as  a  writ  of  certiorari ;  taking  cognizance  of  all 
the  questions  arising  in  the  case,  if  the  matter  be  one  in  nature  at  all 
reviewable  in  certiorari.  The  legislature  was  afraid  to  risk  certiorari 
in  such  cases  of  emergency.  If  we  give  the  statute  any  other  con- 
.struction  it  would  leave  parties  in  many  cases,  in  grave  matters, 
without  relief. 

I  must  be  frank  to  say  that  in  this  hastily  prepared  opinion  I  have 
not  made  a  case  free  from  all  doubt  in  my  own  mind,  but  it  seems 
better  to  me  than  the  contrary  conclusion.  And  there  is  this  further 
reflection  to  give  better  satisfaction  than  a  contrary  conclusion,  and 
that  is  that,  if  Marcum  has  any  right  that  has  been  denied,  we  ought 
nr)t  to  throw  his  cause  out  of  court  merely  because  of  mischoice  of 
remedy,  iniless  such  mischoice  be  clear.  It  is  always  a  hard  case  to 
deny  relief  merely  because  of  mischoice  of  remedy,  when  the  party 
would  have  been  entertained  had  he  chosen  another  form  of  remedy. 
TTcre  a  dismissal  of  tlie  writ  would  bo  a  denial  of  all  relief  to  which 


§     I  MANDAMUS^     1 X     CKNKRAL.  5 1 

he  may  be  entitled,  by  reason  of  the  nearness  of  the  time  when  bal- 
lots must  be  printed  and  the  election  held. 

Question  has  been  raised  whether  the  action  of  ballot  commis- 
sioner is  reviewable  at  all  in  any  mode.  If  not,  then  the  most  flagrant 
innocent  mistakes  and  wrongs  of  intent  by  an  inferior  tribunal, 
hurtful  not  merely  to  citizens'  rights  as  candidates,  but  to  the  pub- 
lic, and  defeating  the  will  of  political  parties  might  exist,  and  there 
v.'ould  be  no  redress.  This  court  has  held  supervisors  and  county 
courts  acting  as  canvassers  in  election  matters,  in  several  cases,  as 
subject  to  review;  and  why  should  not  the  action  of  ballot  commis- 
sioners be  also?  Suppose  there  were  no  review,  then  in  Cabell 
county  one  candidate  would  be  a  party's  candidate  for  judge  or 
Congress  or  the  Senate,  in  Wayne  another,  in  Logan  another.  But, 
under  the  construction  of  the  statute  above  given,  the  legislature  has 
made  their  action  the  subject  of  review. 

Another  question  is  presented  important  to  decide.  There  were 
certain  irregularities  in  the  magisterial  convention  sending  delegates 
to  the  county  convention  of  Cabell  county,  and  certain  irregularities 
in  the  county  convention  which  sent  two  competing  sets  of  delegates 
to  the  circuit  convention.  We  are  asked  to  look  back  as  far  as.  not 
only  the  county  convention,  but  the  magisterial  district  convention, 
and  say  which  set  of  delegates  was  the  proper  delegation  represent- 
ing the  democracy  of  Cabell  county.  But  we  cannot  do  so — cannot 
go  behind  the  circuit  convention.  That  Convention,  like  the  two 
branches  of  the  legislature  of  the  state,  and  Congress,  like  all  de- 
liberative bodies  having  power  to  organize,  is  the  judge  of  the  elec- 
tion, qualification,  and  return  of  its  own  members.  If  we  go  back  of 
the  circuit  convention,  hc5w  far  shall  we  go?  What  shall  limit  our 
mquiry  ?  Must  we  overlook  every  convention  or  primary  election  to 
say  whether  its  members  were  old  enough  or  of  the  politics  to  en- 
title them  to  participate?  There  must  be  a  limit  of  reason  to  oi.r 
powers.  That  is  the  convention  whose  nominations  are  in  question 
before  us.  To  hold  otherwise  would  be  for  this  court  to  assume 
power  to  review  the  organization  of  political  conventions,  prac- 
tically to  organize  them. 

Coming  later  to  a  decision  of  the  case  on  its  facts,  without  de- 
tailing them,  we  find  that  a  Democratic  nominating  convention  for 
said  circuit  assembled,  but  owing  to  controversy,  dissention  and  dis- 
turbance, split  in  two  sections,  which  organized  in  two  separate 
bodies,  each  claiming  to  be  the  true  convention.  Without  elaborat- 
ing this  branch  of  the  case,  it  is  enough  to  say  that  the  refusal  of 
the  ballot  commissioners  to  put  a  candidate's  name  on  the  ballot  is 
to  be  taken  as  right  until  shown  to  be  erroneous.  To  warrant  in  re- 
versing their  action  we  must  see  that  the  convention  making  the 
nomination  is  the  convention  authorized  to  speak  the  will  of  the 
party  it  represents,  and  the  case  must  be  made  clear  enough  to  say 


b- 


MARCUM   \'.    BALLOT   COMMISSIONERS.  §     I 


that  a  given  one  is  that  convention.  Two  clashing  conventions  may 
be  so  circumstanced  as  to  warrant  the  conckision  that  neither  is 
authorized  to  speak  for  the  party.  We  hold  that  neither  of  these 
conventions  was  authorized.  The  law  is  that  the  writ  of  mandamus 
"will  not  lie  unless  the  relator  shows  a  clear  legal  right  to  have  the 
thins:  done  which  he  asks  for.  If  the  right  be  doubtful,  the  writ 
will  not  issue."  IMerrill  Mand.,  §  56.  The -plaintiff ,  has.  not  showii- 
such  a_ clear  righti_and,._we.. therefore  refuse  the  peremptory -man- 
damus^^ 

English,  J.    (dissenting). — I  cannot  concur  in  the  opinion  ex- 
^  pressed  by  Judge  Brannon  in  the  foregoing  opinion,  for  the  foUow- 
i    ing  reasons :    As  I  understand  the  law,  the  writ  of  mandamus  does 
^     not  lie  to  control  the  discretion  of  an  inferior  tribunal  or  officer ; 
V     %       it  will  compel  such  tribunal  or  officer  to  act,  but  never  determines 
how  such  act  shall  be  done  if  such  inferior  officer  or  tribunal  has 
any  discretion  and  the  act  to  be  performed  is  not  merely  ministerial. 
In  the  case  under  consideration  the  board  of  ballot  commissioners 
have  acted,  and  have  placed  T.  H.  Harvey  on  the  ballot,  thus  dis- 
criminating between  his  claim  to  be  so  placed  and  the  claim  of  W. 
^W.  Marcum.     In  doing  this,  the  said  board  of  ballot  commissioners 
'"  have  necessarily  exercised  their  discretion,  and  determined  the  ques- 
.V    .""  tion  between  the  two  candidates.     Now,  if  this  court,  by  the  writ  of 
\         mandamus,  steps  in  and  hears  the  testimony,  and  examines  the  cer- 
^^        tificates  that  were  before  the  ballot  commissioners,  and  reviews  their 
action,  and  determines  who  shall  be  placed  on  the  ticket  to  be  voted 
for,  it  takes  from  the  ballot  commissioners  the  powers  which  the 
law  confers  upon  them,"  and  allows  this  court  to  use  the  writ  of  man- 
damus as  an  appellate  proceeding  to  revise  and  correct  the  action  of 
^  the  ballot  commissioners,  which,  as  I  conceive,  is  beyond  the  limit 
X  of  the  powers  to  be  exercised  by  the  writ  of  mandamus.    This  ques- 
^    tion  has  been  determined  in  such  emphatic  terms  again  and  again  by 
«    this  court  that  I  thought  it  was  at  rest.     In  the  case  of  r>oard  v. 
^    Mintburn,  4  W.  Va.  300,  the  court  thus  states  the  law:   "The  writ 
'if  mandamus  is  a  proper  remedy  to  compel  all  inferior  tribunals  to 
l>erform  the  duties  required  of  them  by  law  ;  and  when  there  is  left 
to  the  inferior  tribunal  no  discretion  but  to  perform  the  duty  in  a 
])articular  way,  by  doing  a  certain  specified  act,  then  the  inferior 
iril)unal  acts  ministerially,  and  may  be  compelled  by  mandamus  not 
only  to  i)erform  its  duties,  but  to  perform  them  by  doing  a  certain 
specific  act.     \\'hcn  there  is  left  to  the  inferior  tribunal  any  discre- 
tion to  perform  its  duty  in  any  other  way  than  by  doing  a  certain 
sj)ecific  act,  then  such  inferior  tribunal  can  be  compelled  by  man- 
fl.'imus  to  act  and  perform  the  duties  required  of  it  by  law,  but  cannot 
be  flirerted  what  decision  shall  be  made.    In  sucli  a  case  the  court  has 
no  jurisdiction  by  nianflanms,  and  the  decision  of  the  inferior  tribunal 
r.'innot  be  rrviewed  bv  nianflanms.     If  anv  errors  havo  been  com- 


§    I  MANDAMUS,    IN    GENERAL.  53 

mitted,  the  proper  mode  of  review  is  by  certiorari."  If  it  were 
otherwise,  this  court  need  not  compel  the  ballot  commissioners  to 
act,  but  would  act  for  them,  and  there  would  be  nothing  left  for  them 
to  do.  In  this  instance  W.  W.  Marcum  and  T.  H.  Harvey  have  each 
presented  to  the  board  of  ballot  commissioners  certificates  of  their 
respective  nominations  by  the  same  party,  on  the  same  day,  to  the 
same  office ;  and  the  board  of  ballot  commissioners,  after  investiga- 
tion and  hearing  the  testimony  adduced  by  each  party,  have  acted, 
and  have  placed  Thomas  II.  Harvey  on  the  ticket  to  be  voted  for; 
and  in  doing  so  they  exercised  discretion,  and  did  not  act  minis- 
terially. They  might  have  performed  the  act  in  a  different  way, 
to  wit,  by  placing  the  name  of  Mr.  Marcum  on  the  ticket  to  be  voted 
for,  which,  as  we  have  seen,  this  court  has  laid  down  as  the  dis- 
tinction between  a  ministerial  and  a  judicial  act.  This  question  was 
again  passed  upon,  in  plain,  positive  and  unmistakable  terms,  in  the 
case  of  State  v.  Court,  33  W.  Va.  589,  11  S.  E.  72,  a  case  in  which 
the  opinion  was  written  by  Judge  Snyder,  in  which  it  was  held 
(second  point  of  the  syllabus)  that  "mandamus  will  not  lie  to  con- 
trol the  discretion  of  any  court,  board,  or  officer  when  the  act  com- 
plained of  is  either  judicial  or  quasi-judicial  in  its  nature.  (3)  The 
inferior  tribunal  may  be  compelled  to  act  in  such  a  case  if  it  un- 
reasonably neglects  or  refuses  to  do  so ;  but,  if  it  does  act,  the  pro- 
priety of  its  action,  however  erroneous  and  improper,  cannot  be 
questioned  or  controlled  by  mandamus.  (4)  Mandamus  cannot  be 
permitted  to  usurp  the  place  of  a  writ  of  error  or  appeal ;  nor  will 
it  lie  when  there  is  any  other  adequate  and  complete  legal  remedy." 
To  the  same  effect  is  the  holding  of  this  court  in  the  case  of  iSIiller 
V.  Court,  34  W.  Va.  285,  12  S.  E.  702,  where  it  is  held:  (i)  "Where 
an  inferior  tribunal  is  authorized  to  use  its  discretion,  it  cannot  be 
controlled  by  mandamus  in  judicially  determining  questions  properly 
presented  for  its  consideration,  and  within  its  jurisdiction.  (2)  If 
any  such  inferior  tribunal  refuse  to  exercise  its  discretion,  and  ren- 
der its  judgment,  it  may  be  compelled  to  act  by  mandamus,  but  the 
manner  of  its  action  or  the  result  of  its  decision  cannot  be  thus  con- 
trolled. (3)  When  such  inferior  tribunal  has  acted  and  rendered  its 
decision  and  judgment,  the  writ  of  mandamus  will  not  be  allowed 
to  usurp  the  province  of  an  appeal  or  a  writ  of  error  or  certiorari. 
and  its  action  cannot  thereby  be  reviewed  or  reversed."  Other  de- 
cisions might  be  cited  to  the  same  effect,  but  these  are  deemed  suffi- 
cient, as  I  think,  to  show  what  has  heretofore  been  regarded  as  tlie 
province  and  true  scope  of  the  writ  of  mandamus  in  this  state.  Does 
section  89  of  chapter  25  of  the  Acts  of  1893  enlarge  the  scope  of  the 
writ,  or  in  any  manner  extend  the  limits  of  its  jurisdictional  power 
beyond  those  prescribed  by  the  common  law?  I  think  not.  When 
we  turn  to  the  statute,  it  merely  provides  that  a  "mandamus  shall 
lie  from  the  Supreme  Court  of  Appeals,  or  any  of  the  judges  thereof 


54  RAISCII  V.   BOARD  OF  EDUCATION  OF  SAN   FRANCISCO.  §     I 

in  vacation,  returnable  before  said  court,  to  compel  any  officer  here- 
in to  perform  any  duty  herein  required  of  him."  This  clause  is 
found  in  a  section  of  the  election  law,  and,  as  I  understand,  only 
authorizes  a  mandamus  when  an  officer  therein  named  refuses  to  do 
and  perform  legally — that  is,  as  required  by  law — any  duty  therein 
required  of  him.  Here  this  board  of  ballot  commissioners  had  not 
refused ;  it  had  acted,  and  in  doing  so  had,  in  its  discretion,  placed 
Thomas  H.  Harvey  on  the  ticket  to  be  voted  for ;  and,  having  exer- 
cised its  discretion  in  so  doing,  this  court  cannot,  by  the  writ  of 
mandamus,  control  or  set  aside  this  action ;  and,  in  my  opinion,  a 
peremptory  writ  of  mandamus  should  be  refused. 


RAISCH  V.  BOARD  OF  EDUCATION  OF  SAN  FRANCISCO. 

1889.     Supreme  Court  of  California.     81  Cal.  542 , 
22  Pac.  Rep.  890. 

Application  for  a  writ  of  mandate  by  Frederick  Raisch  against 
the  city  and  county  of  San  Francisco.  From  a  judgment  awarding 
the  writ  defendant  appeals. 

Belcher,  C.  C. — This  is  an  appeal  from  a  judgment  awarding 
the  respondent  a  writ  of  mandate,  and  the  case  comes  here  on  the 
judgment  roll.  The  facts  stated  in  the  complaint  are,  in  substance, 
as  follows :  Tliere^piQiideiit,  imder  and  by  virtue  and  authority  of 
a  statute  of  this  state,  entered  into  a  written  contract,  by  which  the 
respondent  agreed  to  furnish  the  appellant,  cIuringTlie  fTscaFyear  of 
1884-5,  rubber  hose  of  a  certain  descrTptlon  and  quality,  and  apjSeT- 
lant  agreed  to  pay,  or  cause  to  be  paid,  to  respondent  therefor  a 
sum  of  money  ecjual  to  35  cciils  for  c.-uli  .-mkI  rvvvy  lineal  foot  of 
hose  so  furnished,  delivered  .-md  acrcptid.  In  ])ursuance  oFthis 
contract  respondent  furnished  appellant,  during  the  year  named, 
1,000  feet  of  hose  at  one  time,  and  500  feet  at  another  time,  which 
was  all  of  the  kind  and  quality  named  in  the  contract,  and  was  re- 
ceived and  accepted  by  the  appellant.  In  due  time  respondent  pre- 
.sentfd  liis  claim,  and  demanded  that  a])pellant  draw  drafts  on  the 
school  fuufl  of  the  city  and  county  of  San  Francisco,  in  his  favor, 
for  the  amounts  due  him  for  the  hose  according  to  the  contract 
price,  but  ap])ellant  refused,  and  his  ever  since  refused,  to  draw  the 
drafts.  It  is  further  stated  that  respondent  has  no  plain,  speedy  and 
arjequate  remedy  in  the  ordinary  course  of  the  law.  Respondent 
cf)mmcnrefl  this  procecdin<r  to  compel  the  appellant  to  draw  the 
drafts  askf'd  for.  Appellant  interposed  a  general  demurrer  to  the 
complaint,  wiiich   was  overruled,  and   llun   answered.     After  trial 


§    I  MANDAMUS,    IN    GENERAL.  55 

ihe  court  found  that  all  the  alleviations  of  the  complaint  were  true, 
and  all  the  allegations  of  the  answer  were  untrue,  and  by  its  judg- 
ment granted  the  relief  prayed  for. 

In  support  of  the  appeal  it  is  claimed  that  the  respondent  had  a 
plain,  speedy,  and  adequate  remedy  by  an  ordinary  action  at  law 
against  the  appellant,  and  hence  was  not  entitled  to  the  remedy  by 
mandamus.  It  is  said :  "Petitioner  should  first  sue  the  board,  get 
a  judgment  (if  possible),  and  then  have  the  writ  issued."  It  is  ad- 
mitted that  appellant  is  a  corporation  created  for  school  purposes, 
and  that  its  powers  and  duties  are  defined  by  an  act  of  the  legisla- 
ture of  this  state  approved  April  i,  1872.  Stat.  1871-72,  p.  846. 
Section  2  of  that  act,  subd.  i,  makes  it  a  duty  of  the  board  of 
education  of  the  city  and  county  of  San  Francisco  to  furnish  all  nec- 
essary supplies  for  the  schools  under  its  care,  and  directs  how  they 
should  be  obtained.  Section  7  provides  for  the  disposition  of 
all  moneys  received  or  collected  for  school  purposes  as  follows: 
"All  moneys  received  or  collected  on  account  of  public  education  in 
the  city  and  county  of  San  Francisco  shall  be  deposited  in  the  city 
treasury  and  be  known  as  the  "school  fund."  Payment  from  the  said 
fund  shall  be  made  only  by  the  treasurer  of  the  said  city  and 
county  by  drafts  drawn  on  him  by  the  board  of  education,  signed 
by  the  president  and  superintendent  of  common  schools,  and  coun- 
ter-signed by  the  auditor  of  said  city  and  county ;  and  .all  drafts 
shall  be  made  payable  to  the  person  or  persons  entitled  to  receive 
the  same."  And  section  i,  subd.  12,  declares  that  the  board  shall 
have  power  "'to  examine  and  allow,  in  whole  or  in  part,  every 
demand  payable  out  of  the  school  fund,  or  to  reject  such  demand 
for  good  cause,  of  which  the  said  board  shall  be  the  sole  judge." 

The  argument  is  that  the  board  was  clothed  with  discretionary 
power  to  allow  or  reject  the  respondent's  claim,  and  that  its  dis- 
cretion caimot  be  controlled  by  the  courts  in  a  proceeding  like  this. 
There  can  be  no  doubt  that  the  board  was  authorized  to  purchase, 
and  did  purchase  and  receive,  the  hose,  and  that  respondent  fully 
performed  all  the  conditions  of  the  contract  on  his  part.  This  is  es- 
tablished by  the  findings,  and  they  are  not  assailed.  It  is  also  clear 
that  the  respondent's  claim  must  be  paid,  if  paid  at  all,  out  of  the 
school  fund,  and  that  such  payment  can  only  be  made  by  a  draft 
or  drafts  drawn  by  the  school  board,  and  signed  and  counter-signed 
by  the  designated  officers.  It  is  not  pretended  that  respondent  had 
any  cause  of  action  against  the  city  and  county.  This  being  so,  it  is 
evident  that,  w^hen  the  board  purchased  and  received  the  hose,  it  be- 
came a  matter  of  official  duty  on  its  part  to  pay  the  agreed  price. 
And  when  it  refused  to  do  so  the  respondent  must  necessarily  have 
had  some  remedy  to  enforce  payment.  It  could  not,  of  course,  ap- 
propriate the  hose,  and  leave  the  party  furnishing  it  remediless.    The 


56  RAISCH  V.   LOARD  OF  EDUCATION  OF  SAN  FRANCISCO.  §    I 

only  question,  then,  is,  what  was  his  remedy  ?  Had  he  a  plain, 
speedy,  and  adequate  one  by  the  ordinary  action  at  law? 

It  has  been  held  in  this  state  that,  to  supersede  the  remedy  by 
mandamus,  the  party  must  not  only  have  a  specific,  adequate  legal 
remedy,  but  one  competent  to  furnish  relief  upon  the  very  subject 
matter  of  his  application,  and  one  which  is  equally  convenient,  bene- 
ficial and  eftective  as  the  proceeding  by  mandamus.  Freemont  v. 
Crippen,  10  Cal.  215,  70  Am.  Dec.  711;  Babcock  v.  Goodrich,  47 
Cal.  508;  Railroad  Co.  v.  Railroad  Co.,  id.  551.  The  board  con- 
tracted to  pay  the  respondent  for  the  hose  which  he  furnished,  but, 
as  it  only  had  power  to  pay  by  drawing  drafts  on  the  school  fund,  its 
contract  must  be  construed  to  be  one  to  draw  drafts,  and  not  to  pay 
money  directly.  If,  then,  respondent  could  have  maintained  an  or- 
dinary action,  it  must  have  been  an  action  against  the  board  mem- 
bers to  recover  damages  for  neglect  of  duty.  But  such  an  action 
would  not  evidently  have  been  as  convenient,  beneficial  and  efifective 
as  the  proceeding  by  mandamus,  since  it  would  not  have  compelled 
the  board  to  do  what  it  had  contracted  to  do,  and  what,  as  we  have 
seen,  official  duty  required  it  to  do. 

The  argument  that  the  board  had  the  discretion  to  allow  or  reject 
the  claim,  and  that  its  action  was  final  and  conclusive  so  far  as  this 
proceeding  is  concerned,  is  without  weight.  It  is  true  that,  under 
the  statute,  the  board  may  reject  any  demand  "for  good  cause." 
But,  although  the  board  is  to  be  the  "sole  judge"  of  what  is  good 
cause,  still  the  rejection  cannot  be  arbitrary  or  capricious.  There 
must  be  at  least  the  semblance  of  a  cause.  The  board,  after  obtain- 
ing materials  which  it  has  ordered  and  needs  for  school  purposes, 
cannot  say :  '"True,  the  materials  are  of  the  kind  and  quality  ordered, 
but  we  have  concluded  not  to  pay  for  them,  and  therefore  reject  the 
demand."  And,  whether  there  was  a  semblance  of  a  cause  for  re- 
jecting the  claim  or  not  was  a  question  which  might  be  and  which 
was  properly  tried  in  the  court  below.  Code  Civil  Procedure,  §1090. 
If  there  was  no  semblance  of  a  cause,  then  it  is  clear  that  it  was  the 
duty  of  the  board  to  draw  the  drafts,  and  tlie  writ  was  properly 
granted  to  compel  the  performance  of  this  duty.  See  Wood  v. 
Strother,  76  Cal.  545,  18  Pac.  Rep.  766,  where  the  authorities  on  the 
subject  are  verv  fully  collated  and  reviewed.  Our  conclusion^ is  that 
the  jiulgment  was  right,  and  we  therefore  advise  that  it  be  affirmed. 

Judgment  affirmed. 

Havne,  C,  and  Foote,  C,  concur. 

Patterson,  j..  Fox,  J.,  and  Thornton,  ].,  dissent  upon  the 
ground  that  the  relator  has  an  adequate  remedy  in  a  suit  for  the 
breach  of  a  contract. 


§    I  MANDAMUS,    IN    GENERAL.  57 

12.     Whether  granted  in  an  anticipation  of  an  omission  of  duty. 
STATE  V.  RISING. 
1880.     Supreme  Court  of  Nevada.     15  Nev.  164. 

By  the  court,  Beatty,  C.  J. : 

The  relator  was  convicted  by  a  justice  of  the  peace  of  Virginia 
City,  of  having  violated  a  municipal  ordinance,  and  was  sentenced 
to  pay  a  fine  therefor,  and,  in  default  of  payment,  to  be  imprisoned 
in  the  city  jail.  From  this  judgment  he  appealed  to  the  first  dis- 
trict court,  of  which  the  respondent  is  the  judge.  He  there  de- 
manded a  jury  trial,  but  the  respondent  announced  that  he  would  be 
tried  without  a  jury,  and  set  the  case  down  on  the  calendar  for  the  / 
first  of  May,  proximo. 

Thereupon  this  application  was  made  for  the  alternative  writ  of 
mandamus,  commanding  the  respondent  to  impanel  a  jury  to  try  the 
relator,  or  to  show  cause  why  he  should  not  do  so. 

The  petition  was  filed  April  5th,  and  the  alternative  writ  issued, 
notwithstanding  grave  doubts  on  the  part  of  the  court  as  to  its  being 
the  proper  remedy  for  the  supposed  grievance.  At  a  subsequent 
day  the  respondent  showed  cause,  and,  besides  claiming  that  the  re- 
lator had  no  right  to  a  jury  trial,  took  the  further  objection  that, 
even  if  he  has  such  a  right,  he  cannot  enforce  it  by  means  of  this 
proceeding. 

This  objection  is,  in  our  opinion,  fully  sustained  by  the  decision 
in  State  v.  Gracey.  The  rule  adopted  in  that  case  is,  that  "manda- 
mus is  never  granted  in  anticipation  of  a  supposed  omission  of  dutv, 
however  strong  the  presumption  may  be  that  the  persons  whom  it  is 
sought  to  coerce  by  the  writ  will  refuse  to  perform  their  duty  when 
the  proper  time  arrives.  It  is  therefore  incumbent  on  the  relator  to 
show  an  actual  omission  on  the  part  of  the  respondent  to  perform 
the  required  act,  and  since  there  can  be  no  omission  before  the  time 
arrives  for  the  performance  of  the  duty,  the  writ  will  not  issue  be- 
fore that  time.  In  other  words,  the  relator  must  show  that  the  re- 
spondent is  actually  in  default  in  the  performance  of  a  legal  dutv 
then  due  at  his  hands,  and  no  threats  or  predetermination  can  take 
the  place  of  such  default  before  the  time  arrives  when  the  dutv 
should  be  performed,  nor  does  the  law  contemplate  such  a  degree  of 
diligence  as  the  performance  of  a  duty  not  yet  due."     11  Nev.  233-4. 

Upon  these  grounds  it  was  denied  in  that  case,  notwithstanding 
the  strong  presumption  that  the  respondent  would  refuse  to  perform 
his  plain  duty ;  and  the  relator  would  be  injured  thereby,  and  that 
he  had  no  other*  plain  or  adequate  remedy.  In  reference  to  these 
matters  we  said:    "The  court,  however,  cannot  anticipate  that  the 


^8  ATTORNEY   GENERAL   V.    CITY   OF   liOSTON.  §    I 

auditor  \\i\\  not  perform  his  duty  within  the  time  prescribed  by  the 
statute,  and  an  actual  default  or  omission  of  duty  is  just  as  essential 
a  prerequisite  to  the  issuance  of  the  writ  as  is  the  want  of  an  ade- 
quate remedy  in  the  ordinary  course  of  the  law,"  p.  236. 

In  this  case  it  can  in  no  event  bo  claimed  that  the  respondent  is 
in  actual  default.  He  has,  it  is  true,  announced  his  intention  of 
trying  the  relator  without  a  jury,  and  we  presume  that  he  will  do  so ; 
but,  even  if  the  relator  has  a  right  to  a  jury  trial  (and  we  are  not 
to  be  understood  that  he  has),  he  has.  as  yet,  sufifered  no  injury, 
and  respondent  is  not  as  yet  in  default. 

If,  as  the  relator  claims,  he  has  a  statutory  right  to  a  jury  trial 
in  the  district  court,  and  he  is  denied  it,  he  must  seek  his  remedy  in 
some  other  form. 

The  proceeding  is  dismissed. 


ATTORNEY  GENERAL  v.  CITY  OF  BOSTON. 

1877.     Sui'REME  Judicial  Court  of  Massachusetts. 
123  Mass.  460. 

By  the  statute  of  1852,  c.  244,  the  East  Boston  Ferry  Co.  was  in- 
corporated for  the  purpose  of  establishing  and  supporting  a  ferry 
between  the  mainland  in  the  city  of  Boston  and  the  island  of  East 
Boston,  and  was  allowed  to  receive  and  collect  such  tolls  as  the 
mayor  and  aldermen  should  determine ;  and  the  city  of  Boston  was 
authorized,  at  any  time  during  the  continuance  of  its  charter,  to 
purchase  the  ferry  and  franchise  of  the  company,  and  to  issue  scrip 
in  payment  therefor ;  and  thereupon  to  collect  the  same  rate  of  toll 
as  was  allowed  to  the  company ;  provided  that,  whenever  the  tolls 
collected  shall  be  sufficient  to  reimburse  the  city  for  the  cost  of  the 
ferry,  with  annual  interest  on  the  scrip,  and  for  all  the  expenses  of 
the  repairs  and  additions  to  the  ferry,  and  all  current  and  incidental 
expenses  of  its  superintendence  and  its  management,  and  to  pro- 
vide a  sufficient  sum  for  its  future  support,  "then  the  tolls  on  said 
ferry  shall  cease,  and  said  ferry  shall  ever  afterwards  be  maintained 
by  said  city  of  Boston  as  a  free  ferry."  By  thc-^tatute  of.  1S69,  c. 
'55>  §  I,  the  city  council,  "for  the  purpose  of  improving  private 
property,  ami  of  protecting  the  same  and  the  travel  and  business  be- 
tween the  main  Innd  in  said  city  and  East  TJoston  from  the  disabili- 
ties and  the  burcjcns  of  the  ferry  communications  heretofore  exist- 
ing between  the  said  parts  of  the  city,  and  for  furnishing  additional 
facilities  to  said  travel  and  business,"  was  authorized  to  purchase  the 
ferry  and  franchise  of  the  company,  and  to  causetTTe  Terry  to  be 
maintnined  "in  such  uirmnor  nnd  vpou  stich  rates  oF  ferriage  as  the 


§    I  MANDAMUS,    IK    GENERAL.  59 

Ijiiard  of  aldermen  of  said  city  shall  from  time  to  time  judge  the  best 
interests  of  said  city  to  require,  excepting  only  as  hereinafter  pro- 
vided." By  the  subsequent  sections  of  this  statute  the  city  council, 
"upon  the  completion  of  said  purchase,"  was  authorized  to  deter- 
mine whether  the  interests  of  the  city  would  be  best  promoted  by 
maintaining  the  ferry  free  of  tolls,  either  "thereafter"  or  "for  a 
term  of  not  less  than  ton  years  next  succeeding  said  purchase" ;  and, 
if  either  of  these  alternatives  was  adopted,  the  board  of  aldermen 
was  to  adjudge  whether  East  Boston,  or  any  and  what  part  thereof, 
would  receive  special  benefit  and  advantage  from  the  purchase,  and 
provision  was  made  for  the  assessment  and  levy  of  a  portion  of  the 
cost  upon  the  owners  of  real  estate,  in  the  territory  so  adjudged  to 
be  benefited.  In  1870  the  city  purchased  the  ferry,  and  maintained 
it  for  seven  years  afterwards  at  rates  of  toll  fixed  by  the  aldermen. 

On  July  30,  1877,  the  council  passed  an  ordinance  in  the  follow- 
ing terms:  "Ordered,  tliat  on  and  after  the  first  day  of  January, 
1878,  the  tolls  on  the  East  Boston  ferries  be  abolished,  and  the  said 
ferries  be  run  free  to  the  public  travel."  Petition  prayed  for  man- 
damus commanding  the  city  of  Boston  to  continue  to  collect  tolls 
after  said  Jan.  i,  1878." 

Gray,  C.  J. —  (After  holding  that  it  was  the  intention  of  the  legis- 
lature that  the  question  whether  the  ferry  as  maintained  by  the 
city  was  to  be  a  free  or  a  toll  ferry  was  to  be  determined  once  for 
all  by  the  city,  upon  purchasing  same,  and  that,  having  then  deter- 
mined it  should  be  a  toll  ferry,  and  such  toll  having  been  collected 
for  many  years,  the  order  abolishing  tolls  is  without  authority  and 
void.) 

It  is  insisted  by  the  learned  counsel  for  the  city  that,  assuming 
the  order  of  the  city  council  to  be  illegal  and  void,  this  court  is 
j^owerless  to  restrain  or  control  its  operation  before  the  time  when 
it  will  by  its  terms  take  full  effect.  But  this  position  to  us  appears 
to  be  unsupported  by  the  authorities  cited,  and  to  be  inconsistent 
with  the  very  nature  of  mandamus,  the  power  of  issuing  which  is 
vested  in  the  highest  court  of  common  law  jurisdiction,  and  the 
proper  ofhce  of  which  is  to  compel,  not  only  inferior  courts,  but  also 
officers  and  corporations,  to  obey  and  execute  the  laws,  especiallv  in 
matters  of  public  concern,  when  no  other  equally  effectual  remedy 
is  provided. 

"The  reason  why  we  grant  these  writs,"  said  Lord  Hardwicke, 
when  presiding  over  the  King's  Bench,  "is  to  prevent  a  failure  of 
justice,  and  for  the  execution  of  the  common  law,  or  of  some  stat- 
ute, or  of  the  King's  charter."  King  v.  Wheeler,  Cas.  temp.  Hardw. 
99;  S.  C.  Cunn.  (K.  B.)  155.  The  same  idea  was  more  fully  ex- 
pressed by  Lord  Mansfield,  as  follows :  "A  mandamus  is  a  preroga- 
tive writ;  to  the  aid  of  which  the  subject  is  entitled,  upon  a  proper 
case  previously  shown,  to  the  satisfaction  of  the  court.    The  original 


6o  ATTORNEY   GENERAL  V.    CITV   OF   BOSTON.  §     I 

nature  of  the  writ,  and  the  end  for  which  it  was  framed,  direct  upon 
what  occ&sions  it  should  be  used.  It  was  introduced  to  prevent  dis- 
order from  a  failure  of  justice,  and  defect  of  poUce.  Therefore  it 
ought  to  be  used  upon  all  occasions  where  the  law  has  established 
no  specific  remedy,  and  where  in  justice  and  good  government  there 
ought  to  be  one.  Within  the  last  century,  it  has  been  liberally  inter- 
posed for  the  benefit  of  the  subject  and  advancement  of  justice. 
The  value  of  the  matter  or  the  degree  of  its  importance  to  the  pub- 
lic police,  is  not  scrupulously  weighed.  If  there  be  a  right,  and  no 
other  specific  remedy,  this  should  not  be  denied."  Rex  v.  Barker, 
3  Burr.  ( K.  B.)  1265,  1267. 

The  granting  of  the  writ  of  mandamus  rests  in  the  sound  judicial 
discretion  of  the  court,  which  has  cautiously  abstained  from  laying 
down  any  limits  to  the  exercise  of  this  discretionary  power.  In 
Strong's  case,  Mr.  Justice  Morton  said :  "In  every  well  constituted 
government,  the  liighest  judicial  authority  must  necessarily  have  a 
supervisory  power  over  all  inferior  or  subordinate  tribunals,  magis- 
trates and  all  others  exercising  public  authority.  If  they  commit 
errors,  it  will  correct  them.  If  they  refuse  to  perform  their  duty, 
it  will  compel  them.  In  the  former  case  by  writ  of  error,  in  the 
latter  by  mandamus.  And  generally,  in  all  cases  of  omissions  or 
mistakes,  where  there  is  no  other  adequate  or  specific  remedy,  re- 
sort may  be  had  to  this  high  judicial  writ.  It  not  only  lies  to  min- 
isterial, but  to  judicial  officers.  In  the  former  case  it  contains  a 
inandate  to  do  a  specific  act,  but  in  the  latter  only  to  adjudicate,  to 
exercise  a  discretion,  upon  a  particular  subject." 

Neither  the  fact  that  the  respondent  is  a  municipal  corporation, 
nor  the  fact  that  the  board  of  aldermen  has  a  discretionary  power  to 
fix  the  rates  of  toll,  affords  any  reason  why  the  city  should  not  be 
compelled  by  mandamus  to  perform  the  duty,  imposed  upon  it  by 
law,  of  running  the  ferry  as  a  toll  ferry.  In  East  Boston  Ferry  Co. 
V.  Boston,  loi  Mass.  488,  a  writ  of  mandamus  was  issued  on  the 
application  of  the  East  Boston  Ferry  Co.,  before  the  purchase  of  the 
ferry  by  the  city,  to  compel  the  mayor  and  aldermen  to  establish 
rates  of  toll  in  accordance  wMth  the  statute  of  1852,  c.  244,  §  2.  And 
in  .Attorney  General  v.  Lawrence,  1 1 1  Mass.  90,  a  writ  of  mandamus 
was  issued  to  compel  the  two  branches  of  a  city  council  to  meet  in 
convention  to  elect  a  commissioner  oi  streets,  whose  office  was  es- 
tal)lishf'd  only  by  a  municijwl  ordinance  which  was  subject  to  be  r*" 
pealed  at  any  time  by  the  city  council. 

It  is  said  in  Tapping  Mand.  10,  cited  for  the  respondent,  thar  a 
"mandamus  will  not  be  granted  in  anticipation  of  a  defect  of  duty 
or  error  of  confhict."  P.ut  the  only  reference  of  the  learned  author 
in  support  of  this  iirojiosition  is  to  l^.lackborough  v.  Davis.  I  P.  W. 
.18;  and  an  examination  of  that  case  shows  tliat  the  passage  referred 


§     I  MANDAMUS,,    IN     GENKKAL.  6l 

to  was  but  a  remark  of  the  counsel,  not  assented  to  or  acted  upon 
by  the  court. 

The  case  was  this:  A  man  had  died  intestate,  leaving  as  his  next 
of  kin  a  grandmother  and  an  aunt,  and  the  prerogative  court  had 
granted  administration  to  the  grandmother,  but  had  made  no  order 
of  distribution.  An  application  was  made  in  the  King's  Bench  for 
a  writ  of  mandamus  to  the  judge  of  the  prerogative  court,  command- 
ing him  to  direct  distribution  to  the  aunt  as  well  as  to  the  grand- 
mother. It  was  argued  by  counsel  that  no  mandamus  would  lie  to 
compel  payment  to  legatees  or  to  those  entitled  as  next  of  kin  under 
the  statutes  of  distributions.  To  this  Lord  Holt  answered:  "If  the 
ecclesiastical  judge  act  contrary  to  law,  may  not  this  court  oblige 
him  to  pursue  the  law?  Is  there  any  difference  between  granting  a 
prohibition  to  stop  them  from  going  wrong  and  a  mandamus  to 
guide  them  right?"  It  was  further  argued  for  the  respondent,  "No 
mandamus  ought  to  go,  at  least  till  the  court  have  erred,  for  this 
court  will  not  anticipate  the  judgment  of  the  spiritual  court ;"  or,  as 
stated  in  another  report,  "Where  a  judge  below  is  to  give  judgment, 
and  it  is  not  known  yet  which  way  he  will  judge,  to  command  him 
beforehand  to  do  his  duty,  is  very  odd."  But  Lord  Holt,  disregard- 
ing the  suggestion,  said :  "I  would  fain  know  how  it  comes  to  pass, 
that  the  spiritual  court  have  not  pursued  the  ancient  civil  law,  but 
have  varied  that  by  the  Novels?"  "If  the  spiritual  court,  since  the 
statute  of  Car.  II,  shall  attempt  a  distribution  contrary  to  the  rules 
of  the  common  law,  we  will  prohibit  them  ;  for,  by  that  statute  thev 
are  restrained  to  the  rules  allowed  among  us."  And,  after  advise- 
ment, the  court  decided  the  case  upon  its  merits,  and  refused  the 
writ  of  mandamus,  solely  because  the  grandmother  was  nearer  of 
kin  to  the  intestate  than  the  aunt.  Blackborough  v.  Davis,  i  P.  W. 
41,  47-53  inc. ;  S.  C.  12  Mod.  Rep.  (K.  B.)  615,  621-626  inc. 

In  the  only  other  English  case  cited  for  the  respondent,  the  mas- 
ter of  a  hospital,  having  refused  to  affix  the  common  seal,  to  the 
presentation  of  a  person  to  a  living,  who  had  been  elected  by  a  ma- 
jority of  the  corporation,  was  compelled  by  a  writ  of  mandamus  to 
do  so,  although  no  deed  of  presentation  had  been  tendered  to  him; 
and  this,  not  on  the  ground  that  the  tender  had  been  waived,  "but 
because  that  which  the  master  was  called  on  to  perform  was  sim- 
ple." Oueen  v.  Kendal,  i  O.  B.  366,  386  note;  S.  C.  4  Per.  &  Dav. 
(K.  B.)  603,606. 

The  passage  cited  for  the  respondent  from  High  Ex.  Rem.,  §  12, 
substantially  accords  with  the  statement  of  Tapping,  above  quoted. 
But  the  only  cases  there  referred  to  are  from  Maryland,  Kansas 
and  Louisiana,  and  differ  so  widely  from  the  case  before  us  that  we 
need  not  consider  whether  they  were  well  decided.  In  the  cases  in 
Maryland  and  Kansas,  the  only  day  when  the  respondents  could  by 
law  act  upon  the  subject  in  question  had  either  passed  or  had  not 


62  ATTORNEY   GENERAL  V.    CITY  OF   BOSTON.  §     I 

arrived  when  the  writ  of  mandamus  was  appHed  for.  Commissioners 
V.  Commissioners,  20  Md.  449;  State  v.  State  Canvassers,  3  Kan. 
88.  The  cases  in  Louisiana  were  attempts  by  a  creditor  of  a  munici- 
pal corporation,  or  of  the  state,  to  secure  a  priority  by  writ  of  man- 
damus, to  its  treasurer  to  pay  the  debt  of  the  petitioner ;  and  the 
W'rit  was  refused  in  the  one  case,  because  it  appeared  by  the  record 
that  the  proceedings  were  fictitious  and  colkisive,  and  in  the  other, 
because  the  treasurer  had  not  yet  received  the  money,  and  could  not 
therefore  be  in  fault  in  not  paying  it.  State  v.  Burbank.  22  La.  Ann. 
298;  State  V.  Dubuclet,  24  La.  Ann.  16. 

Application  for  writs  of  mandamus  being  addressed  to  the  sound 
judicial  discretion  of  the  court,  the  circumstances  of  each  case  must 
be  considered  in  determining  whether  a  writ  of  mandamus  shall  be 
granted ;  and  the  court  will  not  grant  the  writ  unless  satisfied  that 
it  is  necessary  to  do  so  in  order  to  secure  the  execution  of  the  laws. 
But,  when  the  person  or  corporation  against  whom  the  writ  is  de- 
manded has  clearly  manifested  a  determination  to  disobey  the  laws, 
the  court  is  not  obliged  to  wait  until  the  evil  is  done  to  issue  the  writ. 

In  the  case  of  King  v.  Milverton,  3  Ad.  &  E.  (K.  B.)  284,  a  court 
leet  was  proved  to  have  been  held,  as  long  as  the  deponents  could 
recollect,  in  October  annually,  and  to  have  been  held  by  the  present 
lord  in  October,  1833.  He  had  been  requested  to  hold  a  court  in 
October,  1834,  and  had  tai<:en  no  steps  in  consequence  of  the  re- 
quest, but  did  not  appear  to  Lave  expressly  refused  to  hold  the 
court.  An  application  to  the  court  of  King's  Bench  on  November 
24,  1834,  for  a  writ  of  mandamus  to  compel  the  holding  of  the 
court,  was  opposed  by  Sir  William  Follet,  upon  the  ground  that  the 
court  could  only  be  held  in  October,  and  that  "the  utmost  that  could 
be  done  would  be  to  compel  the  holding  of  the  court  in  October 
next ;  but  as  the  lord  has  not  absolutely  refused,  that  cannot  be  done 
in  the  present  case" — clearly  im])lying  that,  if  he  had  absolutely  re- 
fused, it  could  be  done.  Sir  Frederick  Pollock  replied :  "Prac- 
tically, the  question  is,  whether  this  court  leet  is  ever  to  bo  held  at 
all ;  for  if  the  court  will  not  grant  the  mandamus  to  hold  at  the 
proper  time,  before  that  time  arrives,  and  if,  after  the  time  has 
passed,  the  mandamus  cannot  be  granted  to  hold  at  any  other  time, 
there  are  no  means  of  enforcing  tlie  performance  of  the  duty  and 
tlic  objection  would  destroy  the  general  power  of  this  court  to  en- 
force the  holding  of  court  leet  by  mandamus."  The  court,  simply 
observing  that  it  was  doubtful  whether  any  charter  or  prescription 
existed  limiting  the  time,  and  that  such  a  limitation  could  not  be  as- 
sumed, and  that  great  public  inconvenience  might  accrue  if  a  man- 
damus were  refused  on  such  grounds,  ordennl  the  writ  to  issue. 

In  Ciiecn  v.  The  Eastern  Counties  Railway,  to  Ad,  &  E.  (K.  B.) 
531  ;  S'  C.  2  Per.  &  Dav.  (K.  15.)  rM8,  and  4  Per.  &  Dav.  (K.  B.)  46; 
it  was  held  that  a  railway  company  which  had  purchased  lands  and 


§    I  MANDAMUS,    IN     GliNEKAL.  63 

begun  works  on  a  part  only  of  the  line  authorized  by  its  cliarter,  c.nd 
which,  as  the  affidavits  showed  reasonable  cause  for  believing,  in- 
tended to  abandon  the  rest  of  the  line,  might  be  compelled  by  man- 
damus to  complete  the  line,  although  the  application  for  the  writ 
was  made  long  before  the  expiration  of  the  time  allowed  by  parlia- 
ment for  such  completion.  See  also  Attorney  General  v.  Birming- 
ham, etc.,  R.  Co.,  4  De  G.  &  Sm.  (Ch.)  490,  498.  To  the  same  ef- 
fect were  the  decisions  of  the  Queen's  Bench  in  Queen  v.  The  York, 
etc.,  R.  Co.,  I  El.  &  Bl.  (Q.  B.)  178;  Queen  v.  Lancashire,  etc.,  R. 
Co.,  I  El.  &  Bl.  (Q.  B.)  228;  and  Queen  v.  Great  Western  R.  Co., 
I  El.  &  Bl.  (Q.  B.)  253.  The  judgment  in  the  Exchequer  Chamber 
in  I  El.  &  Bl.  (Q.  B.)  858,  873  note,  874,  which  reversed  some  of 
these  decisions,  went  upon  the  ground  that  the  acts  of  Parliament 
in  question  had  not  imposed  any  obligation  upon  the  defendants, 
without  touching  the  point  that,  if  they  had,  a  writ  of  mandamus 
might  be  applied  for  before  the  time  had  expired.  Edinburgh,  etc., 
R.  Co.  V.  Philip,  2  Macq.  H.  L.  Cas.  (Scotch)  514,  526. 

In  Webb  v.  Commissioners.  L.  R.  5  Q.  B.  642,  commissioners 
were  incorporated  by  act  of  Parliament  for  the  purpose  of  improv- 
ing a  town,  and  were  empowered  to  levy  rates,  to  borrow  money, 
and  to  issue  debentures.  A  holder  of  such  debentures  moved  for  a 
mandamus  to  compel  the  commissioners  to  apply  their  funds  in  pay- 
ment of  the  interest  thereon.  It  was  objected  that  rates  might  not 
be  levied,  and  that  the  form  of  the  mandamus  shovild  have  been  to 
levy  rates  out  of  which  to  pay  the  interest  on  the  debentures.  But 
the  court  held  that  the  mandamus  should  issue  as  prayed  for,  and 
said  if  the  commissioners  should  not  levy  rates,  the  petitioner  w^ould 
be  entitled  to  another  mandamus  to  compel  them  to  do  so. 

In  a  very  recent  case  in  this  court,  a  statute  authorizing  the  city 
of  Boston,  for  the  purpose  of  abating  a  public  nuisance,  to  raise  the 
grade  of  lands  in  a  particular  district,  and  to  assess  the  expense 
thereof  upon  the  owners  of  the  lands,  provided  that  any  person  en- 
titled to  any  estate  in  such  land,  and  dissatisfied  with  the  assess- 
ment, might  give  notice  to  the  city  council,  and  thereupon  the  city 
should  take  his  land,  and  within  sixty  days  thereafter  file  in  the  reg- 
istry of  deeds  a  description  thereof,  to,2;ether  with  the  statement  that 
it  was  taken  under  the  statute,  which  description  and  statement 
should  be  signed  by  the  mayor,  and  the  title  to  the  land  so  taken 
should  vest  in  the  city.  The  owner  of  an  estate  in  such  land,  being 
dissatisfied  with  the  assessment,  gave  notice  accordingly,  and  of- 
fered to  surrender  his  estate  to  the  city.  The  city  council  neglected 
to  take  it,  and  passed  an  order  vacating  the  assessment.  The  owner 
applied  for  a  writ  of  mandamus  to  thecity  council  and  to  the  mayor, 
both  of  whom  in  their  answers  relied  on  the  order  vacating  the  as- 
sessment. It  was  held  that,  as  soon  as  the  assessment  was  made, 
the  owner  had  the  right  to  surrender  his  estate,  and  the  city  council 


64  AUDITOR  V.    HALBERT.  §    I 

Gould  not  thereafter  vacate  the  assessment,  and  that  the  mandamus 
shouW  issue,  not  only  to  the  city  council  to  take  the  land,  but  to  the 
mayor  to  sign  the  description  and  statement,  although  he  could  not 
do  so  or  be  in  default  for  not  doing  so,  until  the  city  council  had 
passed  an  order  taking  the  land,  and  although  he  might  by  the  stat- 
ute sign  the  description  and  statement  at  any  time  within  sixty  days 
afer  the  taking.  Stat.  1873,  c.  340,  §§  1-4  inc.;  Farnsworth  v.  Bos- 
ton, 121  Mass.  173. 

The  court  have,  affirming  the  right  of  the  attorney  general  to 
bring  the  action,  ordered  that  the  alternative  writ  of  mandamus 
issue. 

The  general  assertion  in  the  text  books  is  that  the  writ  will  not  issue  to 
prevent  an  anticipated  omission  of  duty.  This  rule  is  hardly  sustained  by  the 
best  considered  cases.  In  general,  the  court's  discretion  will  largely  deter- 
mine whether  the  writ  shall  issue  under  the  circumstances  of  the  particular 
case  without  paying  much  attention  to  the  rule  above  quoted. 

It  has  been  held  that  there  may  be  such  a  refusal  in  advance  of  the  time 
actually  fixed  for  performance,  or  such  manifest  intention  not  to  perform  the 
specific  duty,  that  a  court  will  be  justified  in  issuing  the  writ  before  there  has 
.IS  a  matter  of  fact  been  any  real  default.  State  v.  Wrightson,  56  N.  J.  L. 
'26,  28  Atl.  56;  Brandt  v.  Murphy,  68  Miss.  84,  8  So.  Rep.  296;  State  v.  Rot- 
witt,  15  Mont.  29,  37  Pac.  845. 


13.     Statute  of  limitations  affecting  actions  in  mandamus. 
AUDITOR  V.  HALBERT. 
Co-u:rt  of  Appeals  of  Kentucky.     yF^  Ky.  577. 


Chief  Justice  Cofer  dclivorod  the  opinion  of  the  cotu't. 

Tliis  was  an  a])plication  for  a  mandamus  commanding  the  auditor 
of  public  accounts  to  draw  his  warrant  upon  the  treasurer  for  the 
sum  of  eighty  dollars. 

The  facts  were  these: 

The  appellee  was  elected  commonwealth's  attorney  for  the  four- 
teenth judicial  district,  in  August,  1868,  for  a  term  of  six  years. 
During  the  year  1873,  without  any  neglect  of  d-uty  on  his  part,  a 
commonwealth's  attorney  /to  toDif^orc  was  aj-jpointed  by  the  circuit 
court  of  his  district,  and  an  allowance  was  made  to  the 'attorney  so 
appointed,  which  was  cerlificd  to  tlu-  auditor  and  paid;  and  the 
amount  so  paid  was  deducted  from  the  a])pellcc's  salary  for  that 
year. 

T.n  Tune,  1880,  the  appellee  filed  his  petition  in  the  fiscal  court, 
praying  inr  a  mandannis.     The  auditor  pleaded  the  statute  of  limi- 


§     1  MANDAMUS,    IN    GENERAL.  65 

tations.  The  court  s-iistained  a  demurrer  to  the  answer,  and  awarded 
the  writ.    The  auditor  has  appealed. 

There  is  no  statute  in  this  state  in  terms  prescribing  a  Hmitation 
to  a  proceeding  in  mandamus. 

The  attorney  general  contends  that  the  case  falls  within  that 
clause  of  section  2.  article  3,  chapter  74,  of  the  General  Statutes, 
which  prescribes  a  limitation  of  five  years  to  "an  action  upori  a  lia- 
bility created  by  statute." 

The  counsel  for  the  appellee  contends  that  this  statute  does  not 
apply,  because : 

1.  The  proceeding  for  a  mandamus  is  a  motion  and  not  an  ac- 
tion ;  and, 

2.  The  salaries  of  public  officers  are  held  by  the  officers  of  the 
commonwealth  as  trustees. 

1.  The  word  "action",  as  used  in  the  statute  of  limitations,  is 
not  restricted  in  its  signification  to  that  which  is  technically  an  action, 
but  includes  all  civil  proceedings  in  courts  of  justice  for  the  en- 
forcement of  legal  or  equitable  rights,  whether  by  action,  suit,  or 
special  proceeding. 

The  statute  applies  to  the  cause  of  action — the  case  presented  by 
the  plaintifif — and  whether  a  particular  case  is  embraced  by  the 
statute  is  to  be  determined  by  ascertaining  whether  it  is  included  in 
the  causes  of  action  to  which  the  statute  is  made  applicable ;  and 
neither  the  form  of  the  proceeding  nor  the  name  by  which  it  may  be 
called  can  have  any  influence  on  the  question  whether  the  statute 
applies. 

Is  this  a  proceeding  upon  a  cause  of  action  created  by  statute? 

The  appellee  was  entitled  to  his  salary  only  because  the  statute 
gave  it  to  him,  and  it  was  the  duty  of  the  auditor  to  draw  his  war- 
rant for  the  salary  only  because  the  statute  so  declared.  Both  the 
right  of  the  appellee  and  the  duty  of  the  auditor  are  created  hv 
statute.  Without  it  neither  would  exist.  It  seems,  therefore,  to 
follow  that  this  is  a  proceeding  on  a  liability  created  by  statute,  and 
is  embraced  by  the  clause  of  the  statute  of  limitations  quoted  above, 
unless,  as  contended,  the  auditor  is  a  trustee,  and  thereby  precluded 
from  pleading  the  statute.  That  he  is  not  is  quite  clear.  He  is  a 
trustee,  in  a  certain  sense,  for  the  state,  but  certainly  not  for  the 
creditors  of  the  state.  He  owes  them  no  duty  except  to  pav  them 
for  what  they  are  lawfully  entitled  to,  and  is  no  more  a  trustee  for 
them  than  an  individual  debtor  is  a  trustee  for  his  creditors. 

Wherefore,  the  judgment  is  reversed,  and  the  cause  remanded, 
with  directions  to  overrule  the  demurrer  to  the  answer. 

In  accord :  Prescott  v.  Gonser,  34  la.  175 ;  State  v.  School  Dist.,  30  Neb. 
520,  46  N.  W.  613 ;  Bd.  of  Supervisors  v.  Gordon,  82  111.  435 ;  People  v.  Super- 
vi.sors  of  Westchester,  12  Barb.  (N.  Y.)  446;  Georges  Creek  Coal  and  Iron 
Company  v.  Commissioners,  59  Md.  25s:  Avery  v.  Krakow,  72i  Mich  622,  41 
N.  W.  818;  People  V.  Chapin,  104  N.  Y.  96. 


66  CHINN  V.   TRUSTEES,   ETC.  §    I 

CHINN  V.  TRUSTEES,  etc. 
1877.     Supreme  Court  Commission  of  Ohio.     32  Ohio  St.  236. 

Scott,  J. — The  plaintiff  in  error  appHed  to  the  district  court  of 
Lawrence  county  for  a  writ  of  mandamus,  commanding  the  defend- 
ants in  error  to  execute  and  dehver  to  him  a  township  bond  of  Fay- 
ette, for  one  hundred  dollars,  in  compliance  with  the  requirements 
of  the  act  of  April  i6th,  1867,  "to  authorize  and  require  the  pay- 
ment of  bounties  to  veteran  volunteers,"  and  the  acts  amendatory 
thereof. 

The  facts  stated  in  his  relation  were  such  as  to  bring  his  case, 
prima  facie  at  least,  within  the  purview  of  said  statute  and  to  entitle 
him  to  said  bond.  He  avers  in  his  relation  that,  since  the  year  1867, 
he  has  often  requested  the  trustees  of  said  township,  and  their  suc- 
cessors in  office,  including  the  present  board  of  trustees,  to  draw,  per- 
fect, and  deliver  to  him  such  bond,  which  they  have  refused,  and 
still  refuse  to  do. 

His  application  was  made  to  the  district  court,  August  9th,  1873. 
The  defendants  answered,  and  for  their  first  defense  alleged  "that 
the  cause  of  action  on  which  plaintiff's  application  is  based,  accrued 
to  him,  against  the  defendants,  more  than  six  years  prior  to  the 
commencement  of  this  suit,  by  the  said  plaintiff,  and  so  they  say  that 
this  action  is  barred  by  the  statute  of  limitations."  To  this  defense 
the  relator  demurred^  The  court  overruled  his  demurrer  and  there- 
upon dismissed  his  case  at  his  costs.  For  alleged  error  in  this  ac- 
tion of  the  court  below  the  plaintiff  here  prosecutes  his  petition  in 
error. 

The  Code  of  Civil  Procedure  limits  the  time  within  which  an  ac- 
tion can  be  brought  "upon  a  liability  created  by  statute,  other  than 
a  forfeiture  or  penalty,"  to  six  years.  §  14.  This  provision  is  found 
in  title  2  of  the  Code,  the  object  of  which  is  to  define  and  prescribe 
"the  time  of  commencing  civil  actions."  The  civil  action  of  the 
Code  is  a  substitute  for  all  such  judicial  proceedings  as,  prior 
thereto,  were  known,  cither  as  actions  at  law  or  suits  in  equity.  §  3. 
By  section  8,  the  limitations  of  this  title  are  expressly  confined  to 
civil  actions.  But  proceedings  in  mandamus  were  never  regarded 
as  an  action  at  law,  or  a  suit  in  equity,  and  are  not,  therefore,  a 
civil  action  within  the  meaning  of  the  Code.  Mandamus  is  an  ex- 
traordinary or  supplementary  remedy,  which  canwot  be  resorted  to 
if  the  party  has  another  adequate,  specific  remedy.  The  Code  pro- 
vides for  and  regulates  this  remedy,  but  does  not  recognize  it  as  a 
civil  action.  It  declares  that  the  writ  of  mandamus  may  not  be  is- 
sued in  any  case  where  there  is  a  plain  and  adequate  remedy  in  the 
ordinary  course  mF  the  law.     §  570.       And  in  section  577  it  provides 


§    I  MANDAMUS,    IN    GENERAL.  67 

that:    "No  other  pleading  or  written  allegation  is  allowed  than  the 
writ  and  answer." 

These  are  the  pleadings  in  the  case,  and  have  the  same  effect,  and 
are  to  be  construed,  and  may  be  amended,  in  the  same  manner  as 
pleadings  in  a  civil  action ;  and  the  issues  thereby  joined  must  hf 
tried  and  the  further  proceedings  thereon  had  in  the  same  manner 
as  in  a  civil  action.  This  language  clearly  implies  that  mandamus 
is  not  comprehended  within  the  civil  action  of  the  code,  to  which 
alone  the  limitations  of  title  2  are  applicable  as  an  absolute  ba<r. 

In  holding  otherwise  we  think  the  court  below  erred,  and  its  judg- 
ment, therefore,  must  be  reversed. 

We  do  not,  however,  mean  to  intimate  that,  because  there  is  no 
statutory  limitation  to  the  time  within  which  a  writ  of  mandamus 
may  be  obtained  in  this  state,  a  party  may  delay  his  application 
therefor  at  pleasure,  without  detriment  to  his  rights.  Where  the  re- 
lator has  slept  on  his  rights  for  an  unreasonable  time,  and  especially 
if  the  delay  has  been  prejudicial  to  the  defendant,  or  to  the  rights  of 
other  persons,  the  court,  in  the  exercise  of  a  sound  discretion,  may 
well  refuse  the  writ.  In  a  case  in  New  York,  where  the  relator 
sought  by  mandamus  to  have  judicial  proceedings  set  aside,  the 
court  refused  the  writ  because  of  an  acquiescence  in  the  proceedings 
for  one  year.  2  Wend,  (N.  Y.)  264.  In  another  case  it  was  held 
that  mandamus  might  be  brought  within  the  time  fixed  for  the  limita- 
tion of  other  similar  or  analagous  remedies.  People  v.  Supervisors, 
12  Barb.  (N.  Y.)  446.  The  justice  and  equity  of  this  rule  would,  in 
many  cases,  be  questionable.  Moses  on  Mandamus,  190.  What 
laches,  in  the  assertion  of  a  clear  legal  right,  would  be  sufficient  to 
justify  the  refusal  of  the  remedy  by  mandamus,  must  depend  in  a 
large  measure  on  the  character  and  circumstances  of  the  particular 
case. 

These  circumstances  may  often  be  fully  developed  only  on  the  trial 
of  the  case,  as  the  statute  permits  no  reply  to  the  answer  of  the  de- 
fetidant.  For  the  purpose  of  the  demurrer  in  this  case  the  relator 
admits  a  delay  of  six  years.  But,  for  all  other  purposes,  such  delay 
is  to  be  regarded  as  denied.  How  long,  and  under  what  circum- 
stances, the  relator  has  slept  upon  his  rights,  and  what  prejvidice,  if 
any,  has  resulted  therefrom  to  the  defendants,  or  to  other  persons, 
are  facts  to  be  ascertained  upon  the  trial  of  the  case,  and  considered 
by  the  court,  in  determining  whether  such  laches  is  disclosed,  and  to 
justify  a  denial  of  the  remedy  sought. 

The  answer  of  the  defendants  contains  a  second  defense,  to  wlwch 
the  plaintiff  in  error  demurred,  and  his  demurrer  was  sustained  by 
the  court.  Of  this  action  he,  of  course,  does  not  complain.  But 
counsel  for  the  defendant  suggests  that  the  court  erred  in  sustaining 
the  demurrer,  and  that  the  facts  stated  in  this  defense  justifv  the 
court  in  dismissing  the  plaintiff's  case.     It  may  be  sufficient  to  say 


68  STATE  V.   HARD.  §    I 

that  we  think  the  facts  rehed  on  do  not  constitute  a  legal  bar  to  the 
relator's  claim. 

The  judgment  of  the  court  below  will  be  reversed,  the  demurrer 
of  the  plaintiff  to  the  first  defense  of  the  defendants  be  sustained, 
and  the  case  remanded  to  the  district  court  for  trial  upon  its  merits. 

Judgment  accordingly. 

In  accord:  Territory  v.  Potts,  3  Mont.  364;  State  v.  Kirby,  17  S.  Car.  563; 
State  V.  Stock,  38  Kan.  154,  16  Pac.  106;  Amy  v.  City  of  Galena,  10  Biss.  (U. 
S.  Cir.)  263;  Rice  v.  Bd.,  50  Kas.  149,  2>^  Pac.  134;  Mitchell  v.  Boardman,  79 
JNIe.  469,  ID  Atl.  452;  People  v.  Chapin,  104  N.  Y.  96;  State  v.  Capeller, 
39  Ohio  St.  455 ;  State  v.  Jennings,  48  Wis.  549,  4  N.  W.  641 ;  State  v. 
Finley,  74  Mo.  App.  213;  Eggleston  v.  Kent  Cir.  Judge,  50  Mich.  147, 
15   N.   W.  55- 


14.     Renewal  of  application  for  mandamus, 
STATE  V.  HARD. 
1879.     Supreme  Court  of  Minnesota.     25  Minn.  460. 

GiLFiLi.AN,  C.  J- — Alternative  mandamus  to  compel  the  respond- 
ent, auditor  of  Fillmore  county,  to  issue  a  warrant  upon  the  county 
treasurer  for  the  amount  certified  by  the  judge  of  the  district  court 
to  be  due  the  relator  as  court  reporter,  for  transcribing  the  minutes 
of  evidence  in  certain  cases.  It  appears  that  upon  the  same  certifi^. 
cate,  and  the  same  demand  upon  the  auditor,  proceedings  by  alterna 
tive  mandamus  were  instituted  by  the  relator  against  the  respondent 
in  the  district  court,  and,  after  a  full  hearing,  the  alternative  writ 
was  dismissed,  not  for  any  technical  defect  in  the  writ,  but  upon  the 
LTOund  which,  as  the  district  court  held,  showed  the  relator  not  en- 
titled to  relief.  That  decision  was  on  the  merits  of  the  relator's 
claim,  and  is  a  bar  to  this  proceeding.  If  the  decision  of  the  district 
court  was  erroneous,  and  its  dismissal  of  the  proceedings  based 
upon  insufficient  grounds,  the  relator's  remedy  is  by  appeal,  and  not 
by  renewing  the  proceedings  in  another  court. 

Alternative  writ  dismissed. 


§    2  TO   INFERIOR    COURTS   Ai\D   JUDICIAL   OFFICERS.  69 

Section  2. — Mandamus  to  Inferior  Courts  and  Judicial  Officers. 

I.     May  compel  court  to  act  but  cannot  control  its  decision. 
Ex  Parte  MORGAN  and  Another. 
1885.     Supreme  Court  of  United  States.     114  U.  S.  174. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This_is— a«-^ap2lication_  foi^a_^writ.-.af_  mandamus  requiring  the 
Circuit  Court  of  the  United  States  for  the  district  of  Indiana  to 
amend  a  judgment  entered  January  20,  1883,  in  a  cause  wherein  the 
relator's  were  plaintiffs  and  Frederick  Eggers,  defendant,  "so  as  to 
conform  to  the  cc^niplaint  in  said  cause,  and  to  the  finding  oF  verdict 
of  the  court  rendered  upon  the  trial  of  said  cause." 
"^TTie  suit  was  ejectment  to  recover  the  possession  of  "all  the  north 
part  of  lot  2,  in  section  j6,  T.  38,  N.  R.  10  W.  of  the  second  principal 
meridian,  wdiich  lies  west  of  the  track  of  the  Lake  Shore  and  Michi- 
gan Southern  R.  R.,  and  north  of  a  line  parallel  with  the  north  line 
of  said  lot  2,  and  seven  hundred  and  fifty-three  feet  south  therefrom." 

The  judgment  entry,  which  includes  the  only  finding  in  the  case, 
is  as  follows : 

"And  the  court,  having  heard  the  evidence  and  being  fully  ad- 
vised, finds  for  the  plaintiff,  and  orders  and  adjudges  that  they  are 
entitled  to,  and  shall  have  and  recover  of  the  defendant,  the  posses- 
sion of  so  much  of  said  lot  two  (2)  as  lies  south  of  the  south  line 
of  lot  number  one  ( i ),  as  indicated  by  a  fence  constructed  and  main- 
tained by  the  defendant  as  and  on  said  south  line,  said  fence  running 
from  the  .State  line  easterly  to  Lake  Michigan,  and  assessing  the 
damage  at  $1  and  costs  taxed  at  $ — ,  which  the  plaintiffs  shall  re- 
cover of  the  defendant.  All  of  which  is  finally  ordered  adjudged, 
and  decreed." 

After  this  entry  the  petitioner  moved  the  court  to  amend  and  re- 
form the  judgment  so  that  it  would  "conform  to  the  complaint  in 
said  court  and  to  the  finding  or  the  verdict" ;  but  the  court,  on  full 
consideration,  decided  that  the  finding  and  judgment  were  not  sepa- 
rate and  distinct',  and  that  the  meaning  was  clear.  The  entry  was  to 
be  construed  as  finding  and  adjudging  that  the  plaintiffs  were  only 
entitled  to  recover  the  possession  of  so  much  of  the  premises  sued  for 
as  lies  south  of  the  fence  indicated.  For  this  reason  the  motion  was 
denied. 

It  is  an  elementary  rule  that  a  writ  of  mandamus  may  be  used  to 
require  an  inferior  court  to  decide  a  matter  within  its  jurisdiction 
and  pending  before  it  for  judicial  determination,  but  not  to  control 
the  decision.  Ex  parte  Flippen,  94  U.  S.  350;  Ex  Parte  R.  Co.  loi  '1 
U.  S.  720;  Ex  parte  Burtis,  103  U.  S.  238^^.  Here  a  judgment  has 
been  rendered  and  entered  of  record  by  the  circuit  clerk  in  a  suit 


70  THE  LIFE  AND  FIRE  INSURANCE  COMPANY  V.   ADAMS.  ^    2 

within  its  jurisdiction.  The  judgment  is  the  act  of  the  court.  It  is 
recorded  ordinarily  by  the  clerk  as  the  ministerial  officer  of  the  court, 
but  his  recording  is  in  legal  effect  the  act  of  the  court,  and  subject 
to  judicial  control.  The  clerk  records  the  judgments  of  the  court, 
but  does  not  thereby  render  the  judgments.  Jf  ther.eJs  errei'-tft-the-. 
judgments  as  rendered  it  cannot  be  corrected  by  mandamus,  but  re- 
sort must  be  had  to  a  writ  of  error  or  an  appeal.  Ex  parte"T^nng, 
94  U.  S.  418;  Ex  parte  Perry,  102  U.  S.  183. 

If  a  clerk  in  performing  the  ministerial  act  of  recording  a  judg- 
ment has  committed  an  error,  the  court  may  on  motion  at  the  proper 
time  correct  it,  or  it  may  do  so  in  a  proper  case  upon  its  own  sugges- 
tion without  waiting  for  the  parties.  Here  the  plaintiffs,  believing 
that  the  judgment  as  recorded  did  not  conform  to  the  finding,  moved 
the  court  to  amend  it  in  that  particular.  This  motion  the  court  enter- 
tained, but,  being  of  the  opinion  that  the  judgment  had  been  correctly 
recorded,  refused  the  amendment  which  was  asked.  In  this  the  court 
acted  judicially,  and  its  judgment  on  the  motion  can  no  more  be  re- 
viewed by  mandamus  than  that  which  was  originally  entered  in  the 
cause. 

The  writ  is  denied  with  costs. 


THE  LIFE  AND  FIRE  INSURANCE  COMPANY  OF  NEW 
YORK  v.  ADAMS. 

1835.     Supreme  Court  of  United  States.     9  Pet.  (U.  S.)  571. 

Motion  for  a  mandamus  to  be  directed  to  the  District  Judge  of  the 
district  of  Louisiana,  commanding  him  to  make  and  enter  certain 
judgments  and  orders  in  a  suit  pending  before  him,  wherein  judg- 
ment had  been  confessed  by  one  Barker  claiming  to  represent  the 
flefendant  Adams. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

Counsel  having  given  more  precision  to  the  general  application  of 
the  petitioners,  by  presenting  five  separate  and  alternative  prayers  for 
the  mandamus  commanding  a  particular  thing;  each  application 
founded  on  the  rejection  of  that  preceding  it. 

The  first  is  for  such  an  execution  as  that  which  was  issued  on  the 
1 2th  (if  March,  1834,  at  the  instance  of  the  plaintiffs,  being  an  ex- 
ecution for  the  amount  of  all  the  notes  secured  by  the  mortgage  and 
transactif)n  in  the  petition  mentioned,  to  be  levied  on  the  mortgaged 
l)roperty;  but  if  not  sufficient,  then  on  the  property  generally  of 
Christopher  Adams,  whereof  he  was  the  owner  on  the  i8th  of  May, 
182^.  into  whose  hands  soever  the  same  may  have  come. 


§    2  TO   INFERIOR   COURTS   AND   JUDICIAL   OFFICERS.  "Jl 

Judge  Harper  has  shown  for  cause  against  the  execution  of  the 
whole  debt,  on  the  judgment  rendered  by  Judge  Robertson  on  the 
i8th  day  of  Alay,  1826,  that  the  whole  debt  was  not  yet  due,  and  that 
the  judgment  in  its  terms,  comprehends  that  portion  of  the  debt  only 
which  is  actually  due.  He  shows  for  cavise  against  any  execution 
founded  on  the  paper  delivered  by  Josiah  Barker  on  the  loth  day  of 
March,  1834,  that  Josiah  barker  exhibited  no  power  of  attorney,  from, 
Christopher  Adams,  and  sIiuwliI  hm  right  to  personate  him.  That 
tlie  court  did  not  receive  his  confession  as  the  confession  of  Christo- 
pher Adams,  or  enter  any  judgment  upon  it.  Of  consequence,  that 
act  cannot  warrant  an  execution  of  any  description. 

The  record,  we  think,  verifies  these  statements. 

If  the  cause  shown  against  a  mandamus  to  issue  such  a  writ  of 
execution  as  asked  for,  or  the  judgment  in  its  present  state  be  deemed 
sttfficient,  thenthepetitioners  ask  fojr  a  mandamus  commanding  the 
judge  to  amencTsucTi  JudgnTenl7~by  extending  the  terms  thereof,  so 
as~tolfiake  the  same  absolute  upon  all  the  notes  and  sums  of  money 
entmrcfated  in  the  original  transaction,  etc. 

""■^■¥0' e:x:tend  the  judgment  to  subjects  not  comprehended  within  it, 
is  to  make  a  new  judgment.  This  court  is  requested  to  issue  a  man- 
damus to  the  court  for  the  eastern  district  of  Louisiana,  to  enter  a 
judgment  in  a  cause  supposed  to  be  depending  in  that  court ;  not  ac-^ 
cording  to  the  opinion  which  it  may  have  formed  on  the  matter  in, 
controversy,  but  according  to  the  opinion  which  maybe  formed  in^i 
this  court  on  the  suggestion  of  one  of  the  partie^pll  This  court  is 
asked  to  decide  that  the  merits  of  the  case  are  with  the  plaintiffs, 
and  to  command  the  district  court  to  render  judgment  in  their  favor. 
It  is  an  attempt  to  introduce  the  supervising  power  of  this  court  into 
a  cause  while  depending  in  an  inferior  court,  and  prematurely  to  de- 
cide it.  In  addition  to  the  obvious  unfitness  of  such  a  procedure,  its 
direct  repugnance  to  the  spirit  and  letter  of  our  whole  judicial  sys- 
tem cannot  escape  notice. j  The  supreme  court,  in  the  exercise  of  its 
ordinary  appellate  jurisdiction,  can  take  cognizance  of  no  case  until 
a  final  judgment  or  decree  has  been  made  in  the  inferior  tribunal. 
Though  the  merits  of  the  case  may  have  been  substantially  decided, 
while  any  thing,  though  merely  formal,  remains  to  be  done,  this  court 
cannot  pass  upon  the  subject.  If  from  any  intermediate  stage  in  the 
proceedings  an  appeal  might  be  taken  to  the  supreme  court,  the  ap- 
peal might  be  repeated  to  the  oppression  of  the  parties.  So  if  this 
court  might  interpose  by  way  of  mandainus  in  the  progress  of  a 
cause,  and  order  a  judgment  or  a  decree,  a  writ  of  error  might  be 
brought  to  the  judgment,  or  an  appeal  prayed  from  the  decree ;  and 
a  judgment  or  decree  entered  in  pursuance  to  a  mandamus  might  be 
afterwards  reversed.  Such  a  procedure  would  subvert  our  whole 
system  of  jurisprudence. 

The  mandamus  ordered  at  the  last  term,  directed  the  performance 
of  a  mere  ministerial  act.     In  delivering  its  opinion,  the  court  said: 


72  THE  LIFE  AND  FIRE  INSURANCE  COMPANY  V.   ADAMS.  §    "2 

"On  a  mandamus,  a  superior  court  will  never  direct  in  what  manner 
the  discretion  of  an  inferior  tribunal  shall  be  exercised ;  but  they  will, 
in  a  proper  case,  require  the  inferior  court  to  decide."  To  order  the 
district  court  to  give  judgment  for  the  plaintiffs  is  "to  direct  in  what 
manner  its  discretion  shall  be  exercised." 

Sufficient  cause  is  shown  against  granting  this  prayer. 

In  the  event  of  this  prayer  being  rejected,  the  court  is  asked  to 
award  a  writ  of  mandamus  to  the  district  judge,  commanding  him 
to  consummate  the  interlocutory  part  of  the  said  judgment,  by  enter- 
ing and  signing  final  judgment  upon  and  for  all  the  notes  and  sums 
of  money  mentioned  in  the  transaction  aforesaid  as  not  being  then 
due,  and  thereupon  to  issue  such  execution,  etc. 

This  prayer  does  not  vary  substantially  from  its  predecessor.  It 
requires  the  same"mtefferehce  of  the  supreme  court  in  the  "proceed- 
ings of  the  inferior  court  while  in  progress,  and  the  same  direction 
how  its  discretion  shall  be  exercised.  It  requires  a  direction  to  the 
district  court  to  give  judgment  for  one  of  the  parties,  and  prescribes 
the  party  for  whom  it  shall  be  given.  The  cause  against  granting 
the  preceding  prayer  applies  equally  to  this. 

Should  this  last  prayer  also  be  rejected,  the  court  is  next  asked 
to  award  a  mandamus  commanding  the  district  judge  to  compel  the 
marshal  duly  to  execute  such  process  as  may  be  issued,  notwith- 
i-tanding  the  cession  of  the  estate  of  the  said  Adams,  and  the  appoint- 
ment of  a  provisional  syndic  thereof.  It  is  the  duty  of  the  marshal 
to  execute  all  process  which  may  be  placed  in  his  hands ;  but  he  per- 
forms this  duty  at  his  peril,  and  under  the  guidance  of  the  law.  He 
must,  of  course  exercise  some  judgment  in  its  performance.  Should 
he  fail  to  obey  the  exigit  of  the  writ  without  a  legal  excuse,  or  should 
he,  in  obeying  its  letter,  violate  the  rights  of  others,  he  is  liable  to  the 
action  of  the  injured  party. 

In  the  particular  case  in  which  the  creditor  asks  for  a  mandamus 
to  the  district  judge  to  compel  the  officer  to  seize  and  sell  the  prop- 
erty mentioned  in  the  writ,  that  pro])erty  is  no  longer  in  possession 
of  the  debtor  against  whom  the  process  is  directed;  but  has  been 
transferred  by  law  to  other  persons,  who  are  directed  by  the  same 
law,  in  what  manner  they  are  to  dispose  of  it.  To  construe  this  law, 
or  to  declare  the  extent  of  its  obligation,  the  questions  must  be 
brought  before  the  court  in  proper  form,  and  in  a  case  in  which  it  can 
take  jurisdiction.  This  case,  so  far  as  it  is  before  any  judicial 
tribmial,  is  depending  in  a  district  court  of  the  United  States,  and 
])erliaps  in  a  state  court  of  Louisiana.  The  Sui')reme  Court  of  the 
United  States  has  no  original  jurisdiction  over  it,  and  cannot  exer- 
cise appellate  jurisdiction  previous  to  a  final  judgment  or  a  decree, 
further  than  to  order  acts,  purely  ministerial,  which  the  duty  of  the 
di.'itrirt  court  requires  it  to  perform.  This  court  cannot,  in  the  pres- 
ent condition  of  the  case,  construe  judicially  the  laws  which  govern 
it,  or  decide  in  whom  the  prnyicrty  is  vested.     In  so  doing,  it  would 


§    2  TO   INFERIOR   COURTS    AND   JUDICIAL   OFFICERS.  73 

intrude  itself  into  the  management  of  a  case  requiring  all  the  dis- 
cretion of  the  district  judge,  and  usurp  his  powers. 
The  mandamus  cannot  be  granted  as  prayed. 

The  5th  prayer  asks  a  mandamus  requiring  the  judge  to  compel 
the  marshal  to  execute  the  writ  of  execution  heretofore  issued,  on 
the  30th  of  April  1834,  on  the  said  judgment  for  the  amount  of  the 
notes  of  the  said  Adams,  due  on  the  i6th  of  May,  1826,  notwith- 
standing the  cession  and  other  matters  mentioned  by  the  marshal 
in  the  return  thereof. 

This  prayer  differs  from  that  which  preceded  it  only  in  the 
amount  for  which  the  execution  is  to  issue.  So  far  as  respects  the 
interference  of  the  supreme  court  in  construing  laws  not  regularly 
before  it,  and  controlling  the  discretion  of  the  district  court,  they 
stand  on  precisely  the  same  principle.  The  objections  therefore, 
which  were  stated  to  granting  the  4th  prayer,  apply  equally  to  the 
5th. 

The  court  cannot  grant  a  mandamus  ordering  the  district  court 
to  perform  any  one  of  the  specific  acts  which  have  been  stated  in  the 
petition,  or  in  the  more  particular  application  contained  in  the  state- 
ment presented  by  counsel. 

Though  the  supreme  court  will  not  order  an  inferior  tribunal  to 
render  judgment  for  or  against  either  party,  it  will,  in  a  proper  case, 
order  such  court  to  proceed  to  judgment.  Should  it  be  possible,  that 
in  a  case  ripe  for  judgment,  the  court  before  whom  it  was  pending 
could  perseveringly,  refuse  to  terminate  the  cause,  this  court,  with- 
out indicating  the  character  of  the  judgment,  would  be  required  by 
its  duty  to  order  the  rendition  of  some  judgment ;  but,  to  justify  this 
mandate,  a  plain  case  of  refusing  to  proceed  in  the  inferior  court 
ought  to  be  made  out.  In  Ex  parte  Bradstreet,  8  Pet.  (U.  S.)  590, 
this  court  said :  "We  have  only  to  say,  that  a  judge  must  exercise 
his  discretion  in  those  intermediate  proceedings  which  take  place 
between  the  institution  and  the  trial  of  a  suit ;  and  if,  in  the  perform- 
ance of  this  duty,  he  acts  oppressively,  it  is  not  to  this  court  that  ap- 
plication is  to  be  made." 

In^the  case  now  under  consideration,  no  aipplication  is  made  for  a 
mandamus  directing  the  court  generally  to  proceed  to  judgment. 
The- petitioners  require  a  mandamus,  ordering  the  judge  to  render  a 
speciHc^idgment  in  their  favor.  It  is  not  even  shown  that  the  case 
"ts^te'ia' condition  for  a  final  judgment;  nor  is  it  shown  that  the  judge 
is  unwilling  to  render  one.  The  contrary  may  rather  be  inferred 
from  his  readiness  to  grant  a  rule  on  the  defendant,  requiring  him  to 
show  cause  why  a  judgment  should  not  be  rendered.  In  a  case  of 
such  long  standing,  where  it  is  more  than  possible  that  the  defendant 
might  not  be  in  court ;  where  judgment  is  asked  on  a  confession 
made  by  the  agent  of  the  plaintififs,  professing  to  be  the  attorney  of 


74  EX   PARTE  MYRA  CLARKE  WHITNEY.  §    2 

the  defendant;  the  judge  may  be  excused  for  requiring  that  notice 
should  be  given  to  tl^e  defendant. 

The  rule  is  discharged. 

McLean,  J.  I  concur  with  the  opinion  which  has  just  been  de- 
livered. 

At  first,  I  was  inclined  to  think  that,  under  the  general  prayer  for 
relief,  the  court  might  award  a  mandamus  directing  the  district 
judge  to  enter  a  judgment  in  the  case.  Not  that  this  court,  on  a 
mandamus,  should  direct  the  district  court  to  enter  a  judgment  in 
behalf  of  either  party ;  but  that,  in  the  due  exercise  of  its  discretion, 
it  should  proceed  to  render  a  judgment  in  the  case,  in  order  that 
such  judgment  might  be  brought  before  this  court  for  revision,  by 
writ  of  error. 

But  as  there  is  no  specific  prayer  for  a  mandamus,  on  the  ground 
that  the  court  has  refused  to  give  a  judgment,  I  am  content,,  as  it 
involves  a  mere  question  of  practice,  to  agree  with  my  brother 
judges  that  the  prayer  for  this  writ  must  point  out  specifically  the 
ground  of  the  application. 

See  also,  Virginia  v.  Reeves,  loo  U.  S.  313;  Ex  parte  Denver,  etc.,  R. 
Co.,  loi  U.  S.  711;  Ex  parte  Baltimore,  etc.,  R.  Co.,  108  U.  S.  566;  Ex 
parte  Redd,  73  Ala.  548;  People  v.  Knickerbocker,  114  III.  539,  12  N.  E. 
507;  Carpenter  v.  Bristol  Commissioners,  21  Pick.  (Mass.)  258;  State  v. 
Marshall,  82   Mo.   484;    State   v.   Cramer,  96   Mo.   75,   8   S.   W.   788. 


2.     Mandamus  in  civil  actions  generally. 

Ex  PARTE  MYRA  CLARKE  WHITNEY. 
1839.     Supreme  Court  of  LTnited  States.     13  Pet.  (U.  S.)  404. 

Story,  J.,  delivered  the  opinion  of  the  court. 

This  is  the  case  of  a  motion  made  on  behalf  of  Myra  Clarke  Whit- 
ney for  a  mandamus,  to  the  circuit  court  of  the  eastern  district  of 
Louisiana.  The  petition  on  w^hich  the  motion  is  founded  states.^  that 
a  bill  in  equity  is  now  pending  in  the  said  circuit"  court,  in  which  the 
petitioner  is  plaintiff,  against  Richard  Relf  and  others,  defendants; 
that  it  is  undcrstoo<J..to  be  the  settled  determination  of  the  district 
jTuIge  not  to  suffer  clianccry  practice  to  prevail  in  the  circuit  court ; 
that  her  right  to  proceed  in  her  suit  has  been  denied,  until  she  shall 
c?ITn;c  copies  of  her  bill  in  the  Erench  language  to  be  served  upon  the 
dcfenrlants  or  some  of  them,  and  until  she  shall  file  documents  which 
arc  not  made  cxliibits  in  the  case^and  then  that  all  further  proceed-^ 
ings  in  the  cause  shall  be  in  conformity  with  the  existing  practices 
of  the  court,  which  existing  i^ractice  is  understood  to  mean  the  prac- 


§    2  TO    IXl-KRIUK    COURTS   ANU   JUDICIAL   OFFICERS.  75 

tice^revailing  in  the  court  in  civil  cases  generally,  in  disregard  of 
I'h'e  rules  established  by  the  Supreme  Court  to  be  observed  in  chan- 
cery cases.  The  prayer  of  the  petitioner  is  for  a  mandamus  in  the 
nature  of  a  procedendo,  to  compel  the  court  to  proceed  according  to 
chancery  practice,  to  award  an  attachment,  and  compel  Relf  to  an- 
"svve'r  tTie~bin,  and  to  suffer  the  petitioner  in  all  things  to  proceed  in 
the  cause  in  such  manner  as  the  constitution  and  laws  of  the  United 
States  and  the  principles  and  usages  in  equity  will  authorize.  A 
copy  of  the  bill,  and  the  orders  and  proceedings  of  the  district  judge 
thereon,  are  presented  with  the  ])etition. 

That  it  is  the  duty  of  the  circuit  court  to  proceed  in  this  suit  ac- 
cording to  the  rules  prescribed  by  the  supreme  court  for  proceedings 
in  equity  cases  at  the  February  term  thereof,  A.  D.  1822,  can  admit 
of  no  doubt.  That  the  proceedings  of  the  district  judge,  and  the 
orders  jnade  by  him  in  the  cause,  which  are  complained  of,  are  not 
in  conformity  with  those  rules  and  with  the  chancery  practice,  can 
admit  of  as  little  doubt.  But .]tbe_question  before  i-isjs  not  as  to  the 
regularity  and  propriety  of  those  proceedings,  but^'whether  the  case 
before..us,is  one  in  which  a  mandamus  ought  to  issue.    AncT'we'arfe 


of  the  opinion  that  it  is  not  sucTraT'case.  The  district  judge  is  pro- 
ceeding in  the  cause,  however  irregular  that  proceeding  may  be 
deemed;  and  the  ai)])rc)prrate'redreTs;  if "anr;  isto  be  obtained  by  an 
appfeal  after  the  final  decree  shall  be  had  in  the  cause.  A  writ  of 
"r^Siidamus  is  not  the  appropriate  remedy  for  any  orders  which  may 
be  made  in  a  cause  by  a  judge  in  the  exercise  of  his  authority;  al- 
though they  may  seem  to  bear  harshly  or  oppressively  upon  the  party. 
The  remedy  in  such  cases  must  be  sought  in  some  other  form. 
The  motion  for  the  mandamus  is  therefore  denied. 

See  also,  Ex  parte  McKissack,  107- Ala.  493,  18  So.  140;  People  v.  Mc- 
Lane,  62  Cal.  616 ;  Starnes  v.  Tanner.  73  Ga.  144 ;  State  v.  Judge,  32  La. 
Ann.  549;  Chandler  v.  Antrim,  Cir.  Judge,  97  Mich.  621,  57  N.  W.  193; 
Ex  parte  Koon,   i    Denio    (N.   Y.)    644. 


3.     Mandamus  to  compel  dismissal  or  re-instatcment  of  causes. 
STATE  v.  O'BRYAN. 

1890.     Supreme  Court  ok  Missouri.     102  Mo.  254,  14  S.  W.  933. 

Sherwood,  J.  In  the  common  pleas  court  of  Cape  Girardeau 
County,  a  judgment  was~'recbvered  by  Bernhardt  Schonhoff  against 
the  Jackson  R.  Co  for  $3,000.00;  this  judgment  was  reversed  in  this 
cotrrt  tmd  the  cause  remanded  to  the  court  whence  it  came.  On  its 
"affival  there,  the  defendant,  by  its  attorney,  filed  its  motion  and  affi- 
davit for  a  change  of  venue  from  Cape  Girardeau  County,  based 


76  STATE  V.   o'bRYAN.  §    Z 

upon  the  prejudice  of  the  inhabitants  of  Cape  Girardeau  county 
against  defendant. 

Pending  said  motion,  the  defendant  filed  another  motion,  to  cer- 
tify and  transfer  said  cause  to  the  circuit  court  of  Cape  Girardeau 
county,  based  upon  the  grounds  that  the  judge  of  said  common  pleas 
court  had  been  of  counsel  in  the  cause,  which  motion  was  by  the 
court  overruled;  but  certifying  to  the  fact  that  the  judge  had  been 
of  counsel,  and  was,  therefore  disqualified  to  sit  in  the  case ^,a  change 
of  venue  was  by  said  court  awarded  to  Scott,  which  was  the  nearest 
adjoining  county  in  said  circuit. 

At  the  October  term,  1889,  of  Scott  county,  defendant  filed  a  mo- 
tion to  dismiss  said  cause,  for  the  reason  that  the  circuit  court  of 
Scott  county  had  no  jurisdiction  of  said  cause,  which  motion  was  by 
said  court  overruled ;  but  the  court,  holding  that  the  said  cause  had 
been  improperly  sent  to  Scott  county,  ordered  it  stricken  frgm  the 
docket  and  the  papers  returned  to  the  said  common  pleas  court. 

At  the  January  term,  1890,  of  the  said  common  pleas  court,  said 
court  holding  that  it  had  no  further  jurisdiction  of  said  cause,  or- 
dered the  papers  to  be  returned  to  said  circuit  court  of  Scott  county. 

At  the  April  term,  1890,  of  said  circuit  court  of  Scott  county,  de- 
fendant again  appeared,  and,  "limiting  its  appearance  to  the  pur- 
poses of  its  motion,"  etc.,  moved  the  court  to  dismiss  said  cause, 
for  the  reason  that  it  had  no  jurisdiction  of  said  cause,  which  motion 
was  sustained  and  the  case  dismissed.  Thereupon  the  relator  moved 
the  court  to  vacate  said  order,  and  reinstate  said  cause,  which  motion 
was  overruled. 

-  Upon  the  foregoing  facts  which  stand  admitted  by  the  return,  the 
question  is  presented,  whether  we  should  compel  the  judge  of  the 
Scott  circuit  court  to  reinstate  upon  the  docket  of  said  court  the 
cause  thus  dismissed. 

After  reading  the  statutory  provisions  we  have  no  doubt  what- 
ever of  the  correctness  of  the  action  of  the  court  of  common  pleas  in 
awarding  a  change  of  venue  to  the  Scott  circuit  court.  Two  grounds 
were  urged  in  the  application  made:  First,  prejudice  of  the  inhab- 
itants of  Cape  Girardeau  county ;  second,  di?([ualification  of  the 
judge  of  the  common  pleas  court  owing  to  his  halving  been  of  coun- 
sel. The  second  application  having  been  made,  pending  the  first, 
both  may  be  regarded  as  but  one  aj^plication  based  uj^on  two  grounds, 
and  was  no  doubt  so  intended  ;  if  not,  the  first  api)lication  should 
have  been  in  terms  and  should  have  been  formally  withdrawn. 

Under  the  ])lain  jjrovisions  of  the  amendatory  act  of  1861,  it  would 
have  been  Init  a  trifling  with  the  administration  of  justice  to  have 
sent  the  cause  to  the  circuit  court  of  CajK*  Girardeau  ccxmty,  in  the 
face  of  the  defendant's  affidavit  that  llu'  inhabitants  of  the  entire 
county  were  prejudiced  against  it.  What  relief  would  this  have 
been  against  the  alleged  ])rejudice? 

Tt  has  been  nvL'cd  that  inasmuch  as  the  Scott   circuit  court  had 


§    2  TO    INFERIOR   COURTS   AND   JUDICIAL   OFFICERS.  JJ 

made  its  final  order  remanding  the  cause  to  the  common  pleas  court, 
and  inasmuch  as  the  latter  court,  after  this  was  done,  simply  made 
its  order  directing-  the  return  of  the  papers  to  the  Scott  circuit 
court,  that  therefore  the  latter  court  is  not  vested  with  jurisdiction  to 
try  the  cause,  etc.  To  this  objection  it  may  be  answered  that  the 
order  made  by  the  Scott  circuit  court  as  aforesaid  was  coram  non 
judice.  That  court  had  no  more  authority  under  the  law  and  the 
facts  to  make  such  an  order  than  it  would  have  had  to  have  sent  the 
cause  to  the  circuit  court  of  Mississippi  county.  Such  orders  are 
nullities  and  consequently  oppose  no  barrier  to  a  correct  method  of 
procedure  when  the  error  complained  of  has  been  ascertained.  .State 
V.  Gabriel,  88  Mo.  631.  Nor  is  it  any  obstacle  to  the  obtaining  of  the 
proper  relief  here,  because  the  lower  court  has  acted.  Bayha's  case, 
97  Mo.  331,  and  cases  cited. 

Nor  would  an  appeal  or  writ  of  error  afford  any  substantial  or 
effectual  remedy  in  a  case  of  this  sort.  Were  an  appeal  taken  in  an 
instance  like  the  present,  there  would  be  nothing  to  pass  upon,  no 
errors  to  correct ;  for  no  trial  had  occurred.  It  is  not  the  intention 
of  the  law  to  allow  a  case  to  be  bandied  about  like  a  shuttle  cock 
from  court  to  court  without  affording  a  more  effective  and  prompt 
relief  than  would  be  afforded  by  an  appeal  or  writ  of  error. 

The  premises  considered,  we  do  not  doubt  that  this  is  an  appropri- 
ate occasion  for  the  exercise  of  our  supervisory  control  and  manda- 
tory authority  and  consequently  we  issue  our  peremptory  writ.  All 
concur. 

Separate  opinion : 

Barclay,  J. — Under  the  statutes  governing  this  case,  fully  set 
forth  in  the  foregoing  opinion,  it  appears  to  me  that  the  learned 
judge  of  the  Scott  circuit  court  was  in  error  in  refusing  to  take  juris- 
diction of  the  cause  referred  to.  While  the  plaintiff  therein  might 
properly  have  resorted  to  a  writ  of  error  or  an  appeal  to  rectify  that 
ruling,  it  seems  to  me  that  he  was  not  necessarily  bound  to  do  so. 

Under  the  constitution  of  this  State,  giving  the  supreme  court  a 
"general  superintending  control"  over  the  trial  courts  (Const.  1875, 
art,  6,  §  3),  it  is  within  the  proper  scope  of  the  constitutional  author- 
ity of  this  court  to  intervene  by  the  writ  of  mandamus  to  reinstate  a 
case  vi^hich  has  been  erroneously  stricken  from  the  docket  at  the  cir- 
cuit, and  in  which  a  hearing  is  absolutely  denied.  In  such  a 
case  we  think  the  party  injured  should  not  be  put  to  the  delay  of  an 
appeal.  The  case  in  question  as  it  stood  in  the  trial  court  when 
stricken  out,  involved  a  greater  sum  than  $2,500.00,  and  hence  was 
within  the  final  reviewing  power  of  this  court.  It  is  unnecessary, 
therefore,  to  now  consider  whether  we  ought  to  entertain  the  appli- 
cation if  the  amount  were  less  than  the  pecuniary  limit  of  the  juris- 
diction of  this  court,  defined  by  the  constitution,  art.  6.  §  12. 

For  these  reasons  the  writ  should  go. 


78  STATE  EX  REL.   JOHNSON  V.   WASHBURN.  §    2 

4.     To  compel  a  change  of  venue. —  (a)  General  rule. 
STATE  EX  REL.  JOHNSON  v.  WASHBURN. 
1867.     Supreme  Court  of  Wisconsin.     22  Wis.  99. 

Cole,  J.  This  was  a  rule  directed  to  the  circuit  judge  of  the  tenth 
circuit,  requiring  him  to  appear  and  show  cause  why  a  peremptory 
writ  of  mandamus  should  not  be  issued,  commanding  him  to  .enter 
an  order  changing  the  place  of  trial  in  an  action  therein  mentioned. 
It  appears  from  the  papers  upon  which  the  rule  was  granted,  that  an 
action  for  the  recovery  of  money  was  commenced  in  the  circuit  court 
of  Oconto  county  against  the  relators.  The  relators  are  all  residents 
of  Milwaukee  county,  and  service  was  had  upon  them  in  that  county. 
Before  the  time  for  answering  expired,  the  defendants  demanded  in 
writing  that  the  trial  be  had  in  the  county  in  which  they  resided.  The 
plaintiff  refusing  to  consent  to  a  change  of  the  place  of  the  trial,  ap- 
plication was  duly  made  to  the  circuit  court  for  an  order  changing 
the  place  of  trial  to  Milwaukee  county.  This  application  was  denied 
by  the  circuit  court,  on  the  ground  and  for  the  reason  stated  by  the 
judge  in  the  answer  to  the  rule  to  show  cause,  that  it  appeared  that 
all  the  transactions  out  of  which  the  cause  of  action  occurred  arose 
in  Oconto  county,  and  that  the  convenience  of  all  the  plaintiff's  wit- 
nesses, and  probably  of  the  defendant's  witnesses,  as  well  as  the  ends 
of  justice,  would  be  best  promoted  by  retaining  the  cause  in  Oconto 
county  for  trial. 

Whether  the  circuit  court  was  right  in  refusing  to  change  the  place 
of  trial  on  these  grounds,  and  in  the  view  which  it  took  of  the  various 
provisions  of  chap.  123,  Rev.  Stat.,  is  a  point  we  shall  not  attempt  to 
decide  upon  this  application.  We  shall  assume,  however,  for  the 
purposes  of  this  application,  that  the  defendants  were  entitled  under 
the  circumstances,  to  have  the  place  of  trial  changed  to  Milwaukee 
county,  where  they  resided.  And  then  the  question  arises,  whether 
this  court  should  grant  a  writ  of  mandamus  commanding  the  judge 
to  change  the  place  of  trial?  It  is  objected  that  the  order  denying  the 
motion  changing  the  place  of  trial  is  appealable,  and  that  the  remedy 
by  mandamus  is  not  proper.  We  think  this  position  is  sound,  and 
that  it  furnishes  a  most  conclusive  reason  for  denying  this  applica- 
tion. In  I'.ank  v.  Tallman,  15  Wis.  92,  an  order  refusing  to  change 
the  place  of  trial  on  account  of  the  prejudice  of  the  judge,  was  held 
to  be  an  appealable  order.  See  also  Oatman  v.  Bond,  15  Wis.  20; 
Foster  V.  Bacon,  9  id.  345  ;  Supervisors  v.  .Supervisors,  20  id.,  139. 
It  is  true,  in  the  ca.se  of  the  .State  v.  McArthur,  13  Wis.  407,  this 
court  granted  a  writ  of  mandamus  commanding  the  circuit  judge  to 
change  the  place  of  trial ;  but  the  question  was  not  fully  considered  by 
the  court,  or  argued  by  the  counsel,  and  we  arc  satisfied  that  the  prac- 


§    2  TO   INFERIOR   COURTS   AND    JUDICIAL   OFFICERS.  79 

tice  there  adopted  was  wrong,  and  should  not  be  followed.  And  be- 
cause an  order  improperly  refusing  to  change  the  place  of  trial  is  an 
appealable  order,  we  deny  the  application  for  the  writ  in  this  case. 
By  the  Court. — ^Motion  for  a  peremptory  writ  of  mandamus  de- 
nied. 

In  accord. — San  Joaquin  county  v.  Superior  Court,  98  Cal.  602,  33  Pac. 
482 ;  People  v.  Clerk  of  Dist.  Ct.,  etc.,  22  Colo.  280,  44  Pac.  506 ;  State  v. 
Cotton,  33  Neb.  560,  50  N.  W.  688;   State  v.  Wolfe,  2  Ohio  Dec.  245. 


(b)     Contra. 

STATE  Fx  rel.  WEDEKIXG  v.  McCRACKEN. 
1894.     Court  of  Appeals  of  Missouri.     6o  Mo.  App.  650. 

Gill,  J.  In  January,  1894,  the  relator  Wedeking,  was  defendant 
in  a  suit  pending  before  the  ap'peTTafif,  INIcCracken,  a  justice  of  the 
peace.  On  the  day  the  cause  was  set  for  trial,  Wedeking  filed  his 
^application  and  affidavit  for  a  change  of  venue.  The  justice  refused 
to  award  the  change  of  venue,  unless  Wedeking  would  prepay  the 
justice's  costs  tor  i-haRTng  the  same,  which  relator  declined  to  do. 
Thereupon  Wedeking  brought  mandamus  in  the  circuit  court  to  com- 
pel the  justice  to  grant  the  change  of  venue.  On  the  trial  of  the 
cause,  the  court  awarded  a  peremptory  writ,  and  from  this  judgment 
justice  McCracken  has  appealed. 

I.  The  first  contention  is  that  mandamus  will  not  lie  in  a  case 
of  this  nature.  The  point  must  be  ruled  against  the  appellant. 
We  shall  assume,  in  the  absence  of  a  contrary  showing,  that  the 
relator  filed  with  the  justice  the  affidavit  required  by  the  statute. 
The  duty  then  devolved  on  the  justice  to  change  the  venue  of 
the  case.  The  statute  provides  that,  "either  party  shall  be  en- 
titled to  a  change  of  venue  in  any  civil  cause  pending  before  a 
justice  of  the  peace,  if  he  shall  before  the  jury  is  sworn,  or  the 
trial  is  commenced  before  the  justice,  file  an  affidavit,"  stating 
that  the  justice  is  a  material  witness,  or  is  prejudiced,  etc.  (6240. 
Rev.  Stat.  1889).  and  "upon  the  filing  of  the  affidavit  in  due 
time,  the  justice  must  allow  the  change  of  venue  and  note  the 
same  on  his  docket,  and  immediately  transmit  all  the  original 
papers  and  a  transcript  of  his  docket  entries  in  the  case,  to'  some 
convenient  justice,"  etc..  provided  that  when  such  affidavit  for  a 
change  of  venue  shall  be  filed,  the  justice  shall  have  no  further 
jurisdiction  in  the  cause,  except  to  grant  such  change  of  venue." 
R.  S.  sec.  6241.  This  proviso  was  added  to  the  law  by  the 
revision   of    1889. 


80  STATE  EX   REL.  WEDEKING  V.   MCCRACKEN.  §    2 

Construing  the  foregoing  statute  (without  the  above  quoted 
proviso  added  by  the  amendment  of  1889),  this  court  has  de- 
cided, that  the  justice,  in  the  matter  of  a  change  of  venue  on 
an  affidavit  duly  filed,  was  bound  under  the  command  of  a  spe- 
cific ministerial  duty  to  award  the  change;  that  the  justice  had 
therein  no  judicial  discretion,  but  there  devolved  on  the  officer 
the  duty  to  perform  an  act  purely  ministerial,  in  its  nature,  and, 
to  secure  the  performance  thereof,  mandamus  would  lie.  State 
V.  Clayton,  34  Mo.  App.  563.  The  reason  for  such  holding  is 
fully  set  forth  in  the  opinion  of  Smith,  P.  J.,  and  to  which  we 
adhere. 

But  it  seems  to  be  contended  by  the  appellant  that  a  change 
in  the  law  (as  announced  in  Loyd  v.  Clayton,  supra,)  has  oc- 
curred by  reason  of  the  amendment  of  1889.  As  already 
stated,  section  6241,  was,  at  that  time,  amended  by  adding  the 
proviso,  "that  when  such  affidavit  for  change  of  venue  shall  be 
filed,  the  justice  shall  have  no  further  jurisdiction  in  the  cause, 
except  to  grant  such  change  of  venue."  Now  it  is  claimed  that 
if  the  justice  shall,  notwithstanding  the  affidavit  therefor,  de- 
cline to  change  the  venue  and  proceed  to  render  a  judgment 
against  the  applicant,  then  such  judgment  shall  be  void  and  the 
matter  is  an  error  that  may  be  corrected  on  appeal  to  the  circuit 
court ;  and  if  correctible  by  appeal,  then,  since  there  is  a  specific 
legal   remedy,   mandamus   will   not   lie. 

We  must,  of  course,  concede  the  correctness  of  the  rule  that 
mandamus  is  an  extraordinary  remedy  to  be  invoked  only  in  the 
absence  of  another.  The  writ  is  issued  only  as  dernier  ressort 
only  when  all  other  remedies  fail,  and  then  to  prevent  a  failure 
of  justice.  But,  "such  other  remedy  must  be  adequate.  Such 
remedy  is  adequate  when  it  reaches  the  end  intended,  and  actu- 
ally compels  the  performance  of  the  duty  which  has  been 
neglected  or  refused.  It  must  apply  to  the  case,  and  afford  the 
particular  right  to  which  the  party  is  entitled.  Anything  v/hich 
falls  short  of  this,  is  not  an  adequate  remedy."  Merrill  on 
Mandamus,  §  53. 

Now  it  is  the  specific  legal  right  of  a  party  to  a  cause  pending 
in  a  justice's  court,  to  have  his  case  tried  and  determined;  and, 
if  dissatisfied  with  the  justice  before  whom  it  is  pending,  the 
litigant  has  the  right,  on  filing  the  necessary  affidavit,  to  have 
the  cause  removed  to  another  justice  to  have  the  cause  heard  and 
determined.  If  the  justice  should  deny  his  application  for  removal 
and  should  proceed  to  try  and  determine  the  cause,  then,  under  the 
amendment  oi  1889.  such  proceeding  by  the  justice  is  coram  non  ju- 
dice  null  and  void  for  want  of  jurisdiction.  And,  if  then  the  cause 
should  be  ajjpealed  to  the  circuit  court,  it  would  there  be  dismissed 
for  the  want  of  jurisdiction  in  the  justice  who  tried  the  cause.     For 


I    2  TO    IM-KRIOK    COURTS    ANO   JUDICIAL   OFFICERS.  8l 

the  rule  is  well  settled  that  the  circuit  court,  to  which  a  case  has 
been  appealed  from  a  justice  of  the  peace,  will  not  acquire  jurisdic- 
tion unless  the  justice  had  jurisdiction.  The  jurisdiction  of  the 
said  appellate  court  is  said  to  be  derived  from  that  of  the  justice. 
Cooper   V.   Barker,   33    Mo.   App.    181. 

Clearl}'  then  the  litigant  who  may  be  denied  a  change  of 
venue  before  the  justice  has  no  adequate  remedy  by  appeal  to 
the  circuit  court.  He  will  as  it  were,  be  "hung  up"  between  the 
two  courts — the  justice  refusing  to  transfer,  and  the  circuit  court 
refusing  to  take  jurisdiction.  This,  then,  must  be  regarded  as 
a  clear  case  for  the  writ  of  mandamus. 

Judgment  of  the   circuit   court  affirmed. 


5.     Vacating  judgment  or  order  and  enforcing  same. 

SHERWOOD  V.  IONIA  CIRCUIT  JUDGE. 

1895.     Supreme   Court  of   Michigan.      105    Mich.    540,   62, 

N.   W.   509. 

Petition  by  Josiah  W.  Sherwood  and  another  directed  to  the 
Ionia   circuit   judge   to   compel   the   vacation  of  an   order. 

Relators  are  the  owners  of  160  a(;res  of  land.  Upon  100  acres 
was~'a""iTroTtgage  for  $5,500.00,  and  upon  the  60  acres  one  of 
about  $2,000.00.  They  borrowed  of  one  Vincent,  $7,000.00  for 
the  purpose  of  paying""oiI  these  mortgages,  securing  this  loan 
by  a  mortgage  on  the  same  property.  Sherwood  agreed  to  pay 
the  other  $500  so  as  to  leave  A^incent's  mortgage  the  first 
mortgage  lien.  Relators  claim  that  they  agreed_with  Vincent 
that  they  might  cut  and  remove  sufficient'  timber  to  "pay^THe 
remaining  $500  due  upon  the  mortgage.  Vincent  denies  such 
an  agreement,  and  claims  that  Mr.  Sherwood  told  him  that  he 
had  debts  due  him  which  he  could  collect  and  pay  the  other  $500. 
Subsequently  Sherwood  induced  one  Hawley  to  indorse  two 
notes  for  him  aggregating  $500,  for  the  purpose  of  paying  this 
deficiency,  and  gave  a  chattel  mortgage  to  Hawley.  Sherwood 
insists  that  at  this  time  he  made  an  agreement  with  one  Temple, 
the  agent  of  Vincent,  permitting  him  to  cut  and  remove  the 
timber,  and  that  this  chattel  mortgage  was  given  to  Hawley  as 
security  for  the  payment  of  the  money  realized  from  the  sale 
of   the   timber,    upon    the    Hawley   notes.      The   timber    was    situ- 


82  SHERWOOD  V.   IONIA  CIRCUIT  JUDGE.  §    2 

ated  upon  the  60  acre  tract.  Sherwood  began  to  cut  and  remove 
the  timoer,  whereupon  the  first  mortgagee  obtained  an  injunc- 
tion preventing  it.  Vincent  also,  learning  that  Shef^^bd  had 
erected  a  mill  upon  the  land,  and  was  cutting  and  removing  the 
timber,  filed  his  bill  and  obtained  an  injunction.  Hawley  after- 
wards filed  a  petition  to  so  modify  the  injunctions  as  to  permit 
timber  to  be  cut  sufficient  to  pay  the  notes  which  he  signed  with 
Sherwood.  Mncent  also  filed  a  petition  praying  that  Hawley 
be  ordered  to  exhaust  his  chattel  mortgage  security,  and  that 
he  be  subrogated  to  the  rights  of  Hawley  under  said  chattel  mort- 
gage. After  hearing  these  petitions,  the  court,  on  September 
14,  1894,  entered  an  order  denying  to  modify  the  injunction  or 
to  direct  Hawley  to  proceed  to  sell  and  dispose  of  the  property 
under  the  chattel  mortgage,  but  directing  that  said  Vincent  be 
subrogated  to  all  the  rights  of  said  Hawley  under  and  by  virtue 
of    his    chattel    mortgage    and    the    notes    secured    thereby ;    that 

I    Hawley    be    directed    to    assign    them    upon    demand    to    Vincent ; 

_'  and  that  upon  said  assignment,  Vincent  be  empowered  and. 
authorized  to  sell  sufficient  of  the  property  to  satisfy  the  ex- 
penses of  sale  and  the  amount  due  on  the  notes  and  to  release 
Hawley  from  liability  in  so  far  as  the  amount  realized  should 
pay  the  notes.  Subsequently  the  relators  filed  a  petition  to 
vacate  the  above  order.  This  the  court  denied,  and  the  purpose 
of  this  petition  is  to  secure  the  writ  of  mandamus  to  compel  the 
respondent   to   vacate   the   order. 

Grant,  J.  (after  stating  the  facts). — It  appears  that  a  large 
amount  of  testimony  was  taken  upon  the  various  issues  involved 
in  these  petitions,  and  the  court  found  that  no  agreement  to 
permit  Sherwood  to  cut  the  timber  was  made  between  him  and 
Vincent,  and  that  Vincent  had  no  knowledge  of  any  such 
arrangement  made  between  Sherwood.  Hawley  and  Temple,  and 
that  Temple  had  no  authority  to  make  such  arrangement.  He 
further  found  that  the  chattel  mortgage  was  given  to  indemnify 
Hawley  against  loss  for  the  payment  of  the  notes,  and  not  for 
loss  from  misa])propriating  the  proceeds  from  the  sale  of  the 
timber,  and  failing  to  apjily  them  as  agreed.  This  appears  to 
be  an  attempt  to  obtain  a  decision  u|ion  the  merits  .i;i.,.a,  chan- 
cery case  by  mandamus  rather  than  by  appeal.  The  facts  ai'e 
all  found  against  the  relators.  Tf  the  evidence  justifies  the  facts. 
the  order  of  the  court  is  right.  Mandamus  is  not  the  proper 
remedy  to  review  such  an  order.  Ap]ieal  is  the  "only "proper 
remedy.  The  issuance  and  retention  of  the  injunction  were 
within  the  discretion  of  the  respondent,  and,  under  the  facts  as 
he  fouiifl  them,  he  not  only  did  not  abuse  his  dl«;cretion,  but  was 
fully  juslificd  in  both  granting  and  retaining  the  injunction. 
This   case   well    illustrates  both   the   inconvenience  and   the   impro- 


§    2  TO    INFERIOR    COURTS   AND   JUDICIAL   OFFICERS.  83 

priety  of  the  attempt  to  review  such  cases  in  this  manner.  The 
papers  presented  for  our  examination,  inckiding  the  testimony, 
cover  nearly  200  pages  of  typewritten  matter.  The  writ  is 
denied  with  costs.    The  other  justices  concurred. 


COMPTON  V.   AIRIAL. 
1854.     Supreme   Court  of   Louisiana.     9   La.   An.   496. 

BucHANNON,  J. — Plaintiff  appeals  from  the  refusal  of  the 
district  judge  to  grant  a  peremptory  mandamus  upon  the  clerk 
of  the  district  court,  commanding  him  to  issue  a  fieri  facias  for 
arrears  of  alimony  exceeding  $300,  due  under  an  interlocutory  ' 
decree  in  a  suit  pending  in  said  court,  between  the  plaintiff  and 
her  husband. 

It   is   for   the   court   which   rendered   the   judgment   to    regulate 
the  manner  of  its  execution   (C.  P.  629)  ;  and  we  are  indisposed    , 
to  interfere  with   this   legal   prerogative  of  the  court  of  the   first    ■ 
instance,  unless  the  record  shows  a  clear  case  of  denial  of  justice  or 
of  oppression. 

We  do  not  think  that  the  petition  shows  a  case  for  mandamus. 
Of  the  right  of  the  party  to  enforce  the  decree  for  alimony  ren- 
dered in  her  favor,  there  can  be  no  question.  But  we  consider 
the  correct  practice  to  be,  that  the  party  should  address  him- 
self to  the  court  that  made  the  decree,  and  make  some  showing, 
by  affidavit,  or  otherwise,  that  the  defendant  has  refused  to  obey 
the  same.  Thereupon  the  court  may  in  its  discretion,  properly 
render  an  execution  for  the  arrears  of  alimony  unpaid.  That 
order  would  be  a  guide  to  the  clerk  in  issuing  a  fie7'i  facias, 
which  writ  must  necessarily  express  some  definite  sum.  (C.  P. 
641).  In  the  present  case,  there  is  no  allegation  of  any  demand 
and  refusal  to  comply  with  the  decree  of  alimony ;  nor  for  any 
application  to  the  court  for  an  order  for  a  fieri  facias;  nor  of 
any  default  of  the  clerk,  to  fulfill  a  duty  attached  to  his  office, 
and  which  might   legally  be  required  of  him    (C.   P.  834). 

The  clerk  is  a  ministerial,  not  a  judicial  officer.  The  appli- 
cation made  to  him  by  the  plaintiff,  was  for  a  fieri  facias,  for 
the  sum  of  $360,  in  execution  of  the  decree  for  alimony  for  || 
payment  at  the  rate  of  $20  per  month.  It  was  not  competent 
for  the  clerk  to  assume,  propria  inotti,  or  to  decide  that  there 
was  an  accumulation  of  arrears  of  alimony  unpaid,  although  due 
tmder  this  decree,  to  the  extent  of  $360.  This  was  a  matter  for 
the   cognizance   of  the   judge. 

Judgment    affirmed. 


84  GRESHAM    V.    I'VKON.  §    2 

Vacating  judgment.  See  Ex  parte  Hoyt,  13  Pet.  279;  Ex  parte  Wash- 
ington, etc.,  R.  Co.,  140  U.  S.  91,  II  Sup.  Ct.  Rep.  673;  Ex  parte  Hayes, 
92  Ala.  120,  9  So.  156;  Barksdale  v.  Cobb,  16  Ga.  13;  State  v.  Neville, 
no  Mo.  345,  19  S.  W.  491;  People  v.  Oneida  Common  Pleas,  21  Wend. 
20;   State  V.  Taylor,   19  Wis.  566;   Rohmeister  v.  Bannon,   15   Ky.  Law   Rep. 

Enforcing  judgment.  See  Cummins  v.  Webb,  4  Ark.  229;  Pickell  v. 
Owen,  66  la.  485,  24  N.  W.  8;  State  v.  Holmes,  38  Neb.  355,  56  N.  W.  979. 


6.     Compelling  allowance  of  appeal. 

GRESHAM  V.  PYRON. 
1855.     Supreme   Court  of   Georgia.      17   Ga.   263. 

Lewis  Pyron,  claiming  to  be  a  creditor  of  Jacob  Stroman, 
deceased  obtained  temporary  letters  of  administration  upon  his 
estate.  He  and  William  Mitchell,  (who  also  was  a  creditor), 
both  advertised  for  permanent  letters.  At  the  hearing  the  Ordi- 
nary granted  the  letters  to  XA'illiam  Mitchell  and  revoked  the 
temporary  letters  to  Pyron,  as  having  expired  by  their  own 
limitation — Pyron  making  no  objection  thereto  within  four  days. 
Pyron  appealed  from  the  grant  of  the  permanent  letters  to 
Mitchell.  Letters  pendente  lite  were  then  granted  to  Mitchell. 
From  the  grant  of  letters  pendente  lite,  Pyron  ofifered  to  appeal 
also.  The  Ordinary  refused  to  grant  an  appeal  from  this  grant 
of  letters.  Pyron  moved  a  rule  v.  the  Ordinary  in  the  superior 
court,  to  show  cause  why  he  should  not  enter  the  appeal,  nunc 
pro  tunc.  This  rule  was  resisted,  first,  because  the  proper  mode 
to  proceed  was  by  mandamus,  and  second,  because  upon  the 
above  facts  as  stated  by  the  Ordinary,  in  his  return  to  the  rule, 
an   appeal   did   not   lie. 

By  the  court, — Starnks,  J.,  delivering  the  opinion. 

(i.)  It  is  insisted  that  the  Ordinary  was  right  in  refusing 
the  appeal,  because  it  was  proposed  to  be  taken  from  a  decision 
declining  to  grant  letters  pendente  life.  The  Javy  authorizes  an 
appeal  from  "any  decision"  of  the  Ordinary.  It  is  impossible 
to  say  that  this  is  not  a  decision.  There  can  be  no  reason  given 
why  it  is  not  a  decision  as  much  as  the  refusal  of  permanent 
letters. 

The  only  reason  assigned  \vh\'  there  is  a  difference,  was,  that  if 
apjicais  from  a  refusal  to  grant  letters,  pending  the  appeal  from  the 
grant  of  permanent  letters,  were  allowed,  it  would  be  productive 
of  great  inconvenience,  as  there  would  then  be  no  one  to  take  charge 
of  and   managt-  the  estate.     This  does  not  necessarily   follow,   for 


§    2  TO    JM'liKKJK    COURTS    AND    J  UiJRTAL   OFFICKK.S.  85 

the  Ordinary  might  appoint,  again,  someone  as  lemporary  adminis- 
trator, pending  the  last  appeal  and  so  on  until  an  administrator  was 
found. 

If  it  be  answered  that  this  might  not  be  practicable,  as  the 
appeal  from  the  refusal  to  grant  letters  pendente  lite  might  not 
be  entered  until  the  court  was  adjourned,  the  reply  to  that  is,  that 
this  observation  applies  as  well  to  the  appeal  in  the  first  in- 
stance ;  and  in  such  case,  the  supposed  inconvenience  would  not 
be  obviated ;  for  letters  pendente  lite  could  not  be  granted  out  of 
the  term,  as  the  law  requires  them  to  be  granted  by  the  court. 

But  it  is  well  known  that  the  argumcntnm  ah  inconvenienti  is 
legitimate  only  where  the  court  is  doubtful  as  to  the  law.  Where 
that  is  clear,  the  court  must  administer  it,  whatever  the  incon- 
venience. 

The  Ordinary,  however,  in  such  a  case  as  that  supposed,  has 
a  general  authority  in  the  premises,  by  which  he  can  to  a  great 
extent,    remedy    such    an    inconvenience. 

(2.)  The  inconvenience  in  question  need  not  arise  again,  for 
another  reason.  By  the  amendment  of  the  constitution  creating 
the  office  of  Ordinary,  that  officer  is  empowered  to  "grant  tem- 
porary letters  of  administration,  to  hold  until  permanent  letters 
are  granted."  When,  therefore,  a  temporary  administrator  is  ap- 
pointed, he  may  retain  his  office  until  the  appeal  from  the  grant 
of  permanent  letters,  is  finally  tried  and  determined,  and  these 
letters  granted.  In  this  case,  Lewis  Pryon,  the  temporary  ad- 
ministrator, might  have  continued  (in  our  opinion)  to  exercise 
his  authority  until  the  appeal  was  disposed  of,  if  he  had  not 
acquiesced    in   the   revocation   of   his   temporary   letters. 

We  are  well  satisfied,  that  the  defendant  in  error  was  entitled 
to   his  appeal. 

(3.)  Let  us  now  ascertain,  whether  or  not,  he  has  pursued 
the  proper  remedy  to  secure  it.  Can  an  inferior  judicature,  in 
this  state  be  reached,  and  its  errors  or  its  refusal  to  administer 
the  law,  be  corrected  by  a  proceeding  in  the  form  of  a  rule  issued 
by   the   superior   court? 

By:  our  system,  what  are  technically  known  as  errors  of  inferior 

courts,  committed  judiciall}-  in  the  administration  of  justice,  must  be 

corrected  by  the  superior  court,  either  by  appeal  or  by  certiorari. 

Arid  the  errors  which  are  to  be  thus  corrected,  are  such  as  occur 

after   a   case   of   some   sort   is   before   the    inferior   tribunal.      But 

here   the   complaint    is,    that   the   Ordinary    would   not   permit  ^TtT?' 

case    to    get    its    lodgment    in    court.      He    refused    to    allow    an 

appeal ;  he   refused      to  do  that  ministerial   act   necessary   to   give 

"TRaf  party  desiring  an   appeal  a   standing  in   court,  and  to  which 

^Tfe  was  entitled  as  a  matter  of  right. 

■~"lt   was   not  a   judicial   error  to   be   corrected.   1nit    a   ministerial 


u 


86  STATE    EX    REL.    WHEELER    V.     MCAULIFFE.  §    2 

act  to  be  performed  by  the  Ordinary,  which  he  refused,  and 
thereby  occasioned  a  faikire  of  justice. 

To  correct  a  failure  of  justice  by  reason  of  such  refusal,  man- 
damus is  the  proper   remedy  in  our  opinion. 

It  was  urged  that  as  the  defendant  in  error,  was  entitled  to 
appeal,  as  a  matter  of  right,  the  superior  court  might  order  such 
appeal  nunc  pro  tunc.  This  is  true;  but  it  must  be  done  by  the 
proper    remedy. 

We  do  not  'see  that  this  case  differs,  in  principle,  from  that 
where  the  clerk  of  the  superior  court  refuses  to  send  up  a  bill 
of  exceptions  to  this  court,  after  there  has  been  a  compliance  with 
the  law ;  or  where  the  clerk  refuses  to  receive  a  petition  and 
annex   process.      They   stand    upon    the    same   basis    of   reasoning. 

The  decisions  cited  by  the  counsel  for  the  defendant  in  error 
are  all  cases  where  the  cause  had  a  lodgment  in  court;  where  the 
ministerial  act  necessary  to  place  the  cause  there  had  been  per- 
formed ;  but  there  was  some  irregularity  or  informality  in  the 
proceeding. 

Let   the    judgment   be   reversed. 


STATE  EX  REL.  WHEELER  v.  McAULIFFE. 
1871.     Supreme   Court   of   Missourl     48   Mo.    112. 

Wagner,  J.,  delivered  the  opinion  of  the  court. 

The  relators  filed  their  petition  in  the  circuit  court,  praying 
that  a  mandamus  might  issue  against  the  respondent,  who  was  a 
justice  of  the  peace  in  St.  Louis  county,  to  compel  him  to  grant 
an  appeal  in  certain  cases  that  had  been  decided  by  him,  and  in 
which  the  relators  were  parties.  Respondent  answered  and  upon 
the  trial  of  the  issues  of  fact  a  verdict  was  rendered  for  the 
relators,  upon  which  judgment  was  entered.  Respondent  then 
filed  his  motion  in  arrest  of  judgment,  for  the  following  reasons: 
First,  that  the  pleadings  and  alternative  writ  issued  herein  do 
not  disclose  any  case  authorizing  the  court  to  issue  a  writ  of 
mandamus;  second,  that  on  the  pleadings  of  the  relators,  it  ap- 
pears that  they  have  mistaken  the  remedy  which  the  law  has 
given  them  in  a  case  of  the  kind  stnted  in  the  pleadings;  third, 
that  the  circtu't  court  can  only  compel  a  justice  of  the  peace  to 
allow  an  appeal  by  rule  and  attachment,  and  not  by  the  writ  of 
nianflnmus. 

The  motion  in  arrest  was  overruled,  and  the  respondent  ap- 
pealed to  the  general  term,  where  tin-  judgment  al"  Sp&CiaT  term 
was  reversed,   and   the  relators  have  brought  the  case  here. 


^2  TO   INFERIOR   COURTS   AND   JUDICIAL   OFFICERS.  Sj 

If  it  can  be  found  that  mandamus  is  not  maintainable  in  a  case 
like  this,  it  will  be  unnecessary  to  examine  the  other  points 
raised.  The  principle  is  unquestioned,  laid  down  by  the  text 
writers  and  established  by  the  adjudged  cases,  that  mandamus 
will  lie  only  where  the  relator  has  a  specific  right  and  the  law 
has  provided  no  other  specific  remedy.  County  v.  Court,  23  Mo. 
449;   State  V.   Court,  41    Mo.   225. 

The  petitioner  here  by  complying  with  the  law,  had  the  right 
to  have  his  appeal  allowed.  But  has  the  law  provided  him  with 
no  other  remedy  than  a  resort  to  this  extraordinary  process? 
By  the  statute  it  has  provided  that  "if  the  justice  fail  to  allow 
Ihe  appeal  in  the  case  where  it  ought  to  be  allowed,  or  if,  by  ab- 
sence, sickness  or  any  other  cause,  on  his  part,  an  appeal  can- 
not be  taken  in  time,  the  circuit  court,  or  any  other  court  having 
jurisdiction  of  such  appeals,  on  such  fact  satisfactorily  appear- 
ing, may  by  rule  and  attachment  compel  the  justice  to  allow  the 
"same  a'n^  to  return  his  proceedings  in  the  suit,  together  with  the 
papers  required  to  be  returned  by  him,"  2  Wag.  Stat.  849,  §  10. 

Here  the  law  has  plainly  and  clearly  pointed  out  a  specific  remedy 
to  be  pursued  on  such  occasions.  By  the  summary  proceeding  of 
rule  and  attachment  the  object  is  attained,  and  there  is  no  ne- 
cessrty"76T  invoking  the  assistance  of  this  wTit.  There  was, 
ttiefefore,  no  reason  for  this  proceeding,  and  the  judgment  at 
General  Term  should  be  affirmed.     The  other  judges  concur. 

(See  §4065  of  the  Rev.  Stat,  of  Mo.   1899.) 

See  also,  Pettigrew  v.  Washington  Co..  43  Ark.  33;  Trustees  Wabash 
&  Erie  Canal  v.  Johnson,  2  Ind.  219;  Kellev  v.  Toney,  95  Ky.  338,  25  S. 
W.  264;  State  V.  Citv  of  Baton  Rouge,  34  La.  Ann.  212;  State  v.  Allen,  92 
Mo.  20,  4   S.   W.  414;   Ex  parte  INIorris.   II   Grat.    (Va.)   292. 

But  see  Smith  v.  Reillv.  82  Mich.  93,  45  N.  W.   1122. 

In  Michigan  and  Alabama,  Mandamus  was  formerly  employed  with  great 
liberality  as  a  remedy  to  correct  errors  of  an  inferior  tribunal.  Later  de- 
cisions iri  these  state's  have,  however,  gone  far  to  produce  a  harmony  with 
what  is  clearly  the  prevailing  view.  i.  c,  that  Mandamus  will  not  he  where 
there  is  a  remedy  existing  by  writ  of  error  or  by  appeal  or  the  statute 
provides  some  specific  remedy  for  correcting  the  errors  of  inferior  tribunals 


// 


88  SIKES    V.    RANSOM.  §    2 

7.     Compelling  court  to  sign  bill  of  exceptions  or  to  amend  same 
according  to  the  truth  in  the  cause. 

SIKES   V.    RANSOM. 
1810.     SurREME   Court   of    New    York.     6   John    (N.   Y.)    279. 

This  was  an  application  to  the  court,  for  a  mandamus  to  the 
judges  of  the  Otsego  Common  Pleas,  to  amend  a  bill  of  excep- 
tions, according  to  the  truth  of  the  case. 

By    the    court : — 

The  application  is  entirely  new :  and  it  becomes  a  question 
whether  this  court  can  interfere  when  a  court  below  refuses  to 
seal  a  bill  of  exceptions.  The  books  do  not  furnish  much  light 
on  this  subject.  The  practice,  in  England,  under  the  statute  of 
West  2,  (of  which  ours  is  a  copy),  seems  to  be,  to  apply  to  the 
court  of  chancery,  for  a  writ  grounded  upon  the  statute.  The 
form  of  the  writ  is  to  be  found  in  the  Register;  (182  a.)  and 
Lord  Redesdale,  in  the  case  of  Lessees  v.  Murray,  i  Sch.  and 
Lef.  75,  calls  it  a  mandatory  writ,  "a  sort  of  prerogative,  writ ;" 
that  the  judges  to  whom  it  is  directed,  must  obey  the  writ,  by 
sealing  the  exceptions,  or  making  a  special  return  to  the  king 
in  chancery.  The  writ  after  citing  the  complaint,  commands 
the  judges  si  ita  est,  tunc  sigilla  vcstra,  etc.,  ct  hoc  sub  pcriculo 
quod  incumbit  nullatenus  omittatis.  What  that  peril  is,  within 
the  purview  of  the  writ,  does  not  distinctly  appear ;  though  the 
books  speak  of  an  action  on  the  statute,  at  the  instance  of  the 
party  aggrieved  (Shower's  P.  C.  117).  In  the  Rioter's  case 
(i  Vern.  175  Ch.)  a  precedent  was  produced  where,  in  a  like 
case,  such  a  mandatory  writ  had  issued  out  of  chancery,  to  the 
judge  of  the  sheriff's  court  in  London.  But,  though  no  instance, 
appears,  of  such  a  writ  issuing  out  of  the  King's  Bench  when 
an  inferior  court  refused  to  seal  a  bill  of  exceptions,  there  is  no 
case  denying  to  that  court  the  power  to  award  the  writ.  It  is, 
in  effect,  a  writ  of  mandamus  and  it  is  so  termed  in  the  books, 
P)acon  Abr.  tit.  Mandamus,  E.  A  mandamus  is  a  prerogative 
writ.  It  ought  to  be  used  where  the  law  has  established  no 
specific  remedy;  and,  where  in  justice  and  good  government, 
there  ought  to  be  one.  Why  cannot  the  writ  in  question  issue 
from  this  court?  We  have  the  general  superintendence  of  all 
inferior  courts ;  nnd  ,-irc  linunrl  to  enforce  obedience  to  the 
statutes,  and  oblige  subordinate  courts  and  magistrates  to  do 
those  legal  acts  which  it  is  their  duty  to  do.  The  mandamus, 
as  was  observed  in  the  case  of  King  v.  I'arker,  3  lUn-r.  (K.  B.) 
F265,  has.  within  the  last  century.  l)ecn  liberally  interposed,  for 
the    benefit     oi    the    subject,    and     the    advancement    of    justice. 


§    2  TO    IXFERIOR    COURTS    AND   JUDICIAL    OFFICERS.  89 

There  is  no  reason  wliv  the  a\var(Hng  of  this  particular  writ  docs 
not  fair  within  the  jurisdiction  of  this  court,  or  why  it  should 
fie  exclusively  confined  to  the  court  of  chancery.  It  would  bo 
equally  in  the  alternative,  quod  si  ita  est,  to  seal  the  bill  of  ex- 
ceptions ;  and  if  it  be  returned  quod  nan  ita  est,  the  answer 
would  be  sufficient ;  and  the  party,  if  aggrieved,  would  be  ]nit 
to  his  action  for  a  false  return.  If  complaint  should  be  made 
against  this  court,  or  one  of  the  judges  for  refusing  to  seal  a  bill 
of  exceptions,  then  the  writ  must  ex  necessitate,  come  from  chan- 
cery if  anywhere ;  but  in  no  other  case  can  it  be  indispensable. 

But,  though  the  court  are  of  the  opinion  that  they  have  juris- 
diction in  this  case ;  yet  there  does  not  appear  to  be  sufficient 
■ground  disclosed  to  justify  their  interference.  The.  bilL  was 
tendered  and  sealed  at  the  last  January  term  of  the  Otsego  Com- 
riion  Pleas ;  and  at  the  last  June  term,  the  judges  were  asked  to 
amend  the  bill,  according  to  a  statement  of  facts  presented. 
Some  of  the  judges  recollected  the  facts  ;  some  of  them  did  not. 
Regularly  a  bill  of  exceptions  ought  to  be  tendered  at  the  trial, 
thougTi  the  practice  is,  to  allow  the  counsel  to  tender  it  after- 
wards, I  Bos.  &  Pul.  (C.  P.)  32.  But  according  to  the  decision 
in  Wright  v.  Sharp,  i  Salk.  (K.  B.)  288,  tjhe^courts  are  not 
bound  to  seal  a  bill  of  exceptions  tendered  at  the  succeeding 
term  of  Court;  for  as  Lord  Holt  observed,  "if  this  practice 
should  prevail,  the  judge  would  be  in  a  strange  condition.  He 
forgets  the  exception  and  refuses  to  sign  the  bill,  so  an  action 
must  be  brought."  The  counsel  should  have  attended  to  the 
bill,  and  have  seen  that  it  was  correct  at  the  January  term.  It 
would  be  a  dangerous  precedent  to  take  compulsory  measures 
against  the  judges,  and  make  them  answer,  at  their  peril,  to  a 
statement  of  facts  tendered  to  them  at  a  subsequent  term. 

The   motion   is   therefore   denied. 

Motion   denied. 


EX    PARTE   CRANE    ET    AL. 

1831.     Supreme    Court   of    the    United    States,      5    Pet.    (U. 

S.)    190. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court. 

These  suits  were  decided  in  the  court  of  the  United  States  for 
the  second  circuit  and  southern  district  of  New  York,  in  May 
Term,  1830.  At  the  trial  the  court  L:a\e  opinions  on  several 
points  of  law.  \vTTTch  were  noted  at  the  time,  and  a  right  to  except 
i?)"them  .reserved.     According  to  the  practice  in  New  York,  bills 


90  EX  PARTE  CRANE  ET  AL.  '§'  2 

fii  exception  were  prepared  by  counsel  in  vacation  and^^Jfin- 
ciered  to  the  circuit  judge  for  his  signature.  The  bills  "compre- 
hend  not  only  the  points  of  law  made  at  the  trial,  but  the  entire 
charge  to  the  jury.  The  judge  corrected  the  bill  by  striking  out 
his  charge  to  the  jury.  This  motion  is  made  for  a  writ  of  man- 
damus, "to  be  directed  to  the  circuit  court  of  the  United  States 
for  the  southern  district  of  New  York  in  the  second  circuit, 
commanding  the  said  circuit  court  to  review  its  settlement  of 
the  proposed  bill  of  exceptions,"  "and  to  correct,  settle,  allow, 
and  insert  in  the  said  bill,  the  charge  delivered  to  the  jury  in 
each   case,   or   the   substance   thereof." 

A  doubt  has  been  suggested  respecting  the  power  of  the  court 
to  issue  this  writ.  The  question  was  not  discussed  at  the  bar, 
but  has  been  considered  by  the  judges.  It  is  proper  that  it 
should  be  settled,  and  the  opinion  of  the  court  announced.  We 
have  determined  that  the  power  exists.  Without  going  exten- 
sively into  this  subject,  we  think  it  proper  to  state  briefly  the 
foundation    of   our   opinion. 

In  England,  the  writ  of  mandamus  is  defined  to  be  a  com- 
mand issuing  in  the  King's  name,  from  the  court  of  King's 
Bench,  and  directed  to  any  person,  corporation,  or  inferior  court 
of  judicature  within  the  king's  dominions,  requiring  them  to 
some  particular  thing  therein  specified,  which  appertains  to 
their  office  and  duty,  and  which  the  court  of  King's  Bench  had 
previously  determined,  or  at  least  supposes  to  be  consonant  to 
right  and  justice.  Blackstone  adds,  "that  it  issues  to  the  judges 
of  inferior  courts,  commanding  them  to  do  justice  according  to 
the  power  of  their  office,  whenever  the  same  is  delayed.  For 
it  is  the  peculiar  business  of  the  court  of  King's  Bench  to  super- 
intend all  other  inferior  tribunals,  and  therein  to  enforce  the 
exercise  of  those  judicial  or  ministerial  powers  with  which  the 
crown  or  legislature  have  invested  them,  and  this,  not  only  by 
restraining  their  excesses,  but  also  by  quickening  their  negli- 
gence, and  obviating  their  denial  of  justice,"  3  Blackstone 
Comm.  110. 

It  is,  we  think  apparent  that  this  definition  and  this  description 
of  the  purposes  to  which  it  is  applicable  by  the  court  of  King's 
licnch,  as  supervising  the  conduct  of  all  inferior  tribunals,  ex- 
tends to  the  case  of  a  refusal  by  an  inferior  court  to  sign  a  bill 
of  exceptions,  when  it  is  an  act  which  "appertains  to  their  office 
ond  duty,"  and  which  the  court  of  King's  Bench  sup])oses  "to  be 
consonant  to  right  and  justice."  Yet  we  do  not  find  a  case  in 
which  the  writ  has  issued  from  that  court.  It  has  rarely  issued 
from  any  court,  but  there  arc  instances  where  it  has  been  sued 
out    of    the    court    of    chancerv,    and    its    form    is    given    in    the 


^    2  TO    IM-KRIOK    COURTS    AND   JUIJICIAI.    OKFICERS.  9I 

register.  It  is  a  mandatory  writ  commanding  the  judge  to  seal 
it,  if  the  fact  be  truly  stated:  si  ita  est. 

There  is  some  difficulty  in  accounting  for  the  fact  that  no 
mandamus  has  ever  issued  from  the  court  of  king's  bench, 
directing  the  justice  of  an  inferior  court  to  sign  a  bill  of  excep- 
tions. As  the  court  of  chancery  was  the  great  ofUcina  hrcvinm 
of  the  kingdom,  and  the  language  of  the  statute  of  Westminster 
the  second  was  understood  as  requiring  the  king's  writ  to  the 
justice,  the  application  to  that  court  for  the  writ  might  be  sup- 
posed proper.  In  i  Sch.  &  Lef.  75,  the  chancellor  superseded 
a  writ  which  had  been  issued  by  the  cursitor,  on  application, 
declaring  that  it  could  only  be  issued  on  the  order  of  the  court. 
He  appears,  however,  to  have  entertained  no  doubt  of  his  power 
to  award  the  writ  on  motion.  Although  the  course  seems  to 
have  been  to  apply  to  the  chancellor,  it  has  never  been  deter- 
mined that  a  mandamus  to  sign  a  bill  of  exceptions  may  not  be 
granted   by   the    court   of   king's   bench. 

It  is  said  by  counsel  in  argument  in  Bridgman  v.  Holt, 
Shower's  P.  C.  122,  that  by  the  statute  of  Westminster  the 
second,  chap.  31,  in  case  the  judge  refuses,  then  a  writ  to  com- 
mand him,  to  issue  out  of  chancery,  quod  apponat  sigilliim.  sunm. 
The  party  aggrieved  by  denial  may  have  a  writ  upon  the  statute 
commanding  the  same  to  be  done,  etc.  That  the  law  is  thus 
seems  plain,  though  no  precedent  can  be  shown  for  such  a  writ ; 
it  is  only  for  this  reason,  for  no  judge  ever  refused  to  seal  a  bill 
of  exceptions ;  and  none  was  ever  refused,  because  none  was 
ever   tendered    like   this,    so    artificial    and    groundless." 

The  Judicial  Act,  13,  enacts,  that  the  supreme  court  shall 
h.ave  power  to  issue  vvrits  of  prohibition  to  the  district  courts, 
when  proceeding  as  courts  of  admiralty  and  maritime  jurisdic- 
tion ;  and  writs  of  mandamus,  in  cases  warranted  by  the  prin- 
ciples and  usages  of  law,  to  any  courts  appointed,  or  persons 
holding  offices  under  the  authority  of  the  United  States.  A 
mandamus  to  an  officer  is  held  to  be  the  exercise  of  original 
jurisdiction ;  but  a  mandamus  to  an  inferior  court  of  the  United 
States,  is  in  the  nature  of  appellate  jurisdiction.  A  bill  of 
exceptions  is  the  mode  of  placing  the  law  of  the  case  on  the 
record,  which  is  to  be  brought  before  this  court  by  the  writ  of  error. 

That  a  writ  of  mandamus  to  sign  a  bill  of  exceptions  is  "war- 
ranted by  the  principles  and  usages  of  law,"  is,  we  think 
satisfactorily  proved  by  the  fact  that  in  England  it  is  given  by 
statute ;  for  the  writ  given  by  the  statute  of  Westminster  the 
second,  is  so  in  fact,  and  is  so  termed  by  the  books.  The 
Judicial  Act  speaks  of  the  usages  of  law  generally,  not  merely 
o£  common  law.  In  England,  it  is  awarded  by  the  chancellor ; 
but  in  the  United  States,  it  is  conferred  expressly  on  this  court. 


92  EX    PARTE   CRANE   ET   AL.  §    2, 

which  exercises  both  common  law  and  chancery  powers,  is  in- 
vested with  appellate  power,  and  exercises  extensive  control  over 
all  the  courts  of  the  United  States.  We  cannot  perceive  a 
reason  why  the  single  case  of  a  refusal  by  an  inferior  court  to 
sign  a  bill  of  exceptions,  and  thus  to  place  the  law  of  the  case 
on  the  record,  should  be  withdrawn  from  that  general  power  to 
issue  writs  of  mandamus  to  inferior  tribunals  which  is  con- 
ferred by  statute. 

In  Xew  York,  where  a  statute  exists  similar  to  that  of  West- 
minster, the  second,  an  application  was  made  to  the  supreme 
court  for  a  mandamus  to  an  inferior  court,  to  amend  a  bill  of 
exceptions  according  to  the  truth  of  the  case.  The  court  treated 
the  special  w^it  given  by  the  statute  as  a  mandamus,  and  de- 
clared that  it  was  so  considered  in  England ;  and  added  that  "though 
no  instance  appears  of  such  a  writ  issuing  out  of  the  court  of 
king's  bench,  where  an  inferior  court  refuses  to  seal  a  bill  of 
exceptions,  there  is  no  case  denying  to  that  court  the  power  to 
award  the  writ."  "It  ought  to  be  used  where  the  law  has 
established  no  specific  remedy,  and  where  in  justice  and  good 
government  there  ought  to  be  one."  "There  is  no  reason  why 
the  awarding  of  this  wTit  does  not  fall  within  the  power  of  this 
court,  or  why  it  should  be  exclusively  confined  to  the  court  of 
chancery." 

In  the  opinion,  then,  of  the  very  respectable  court  which 
decided  the  motion  made  for  a  mandamus  in  the  case  of  Sikes 
V.  Ransom,  6  Johns.  279,  the  supreme  court  of  New  York 
possesses  the  power  to  issue  this  writ  in  virtue  of  its  general 
superintendence  of  inferior  tribunals.  The  judicial  act  confers 
the  power  exclusively  on  this  court.  No  other  tribunal  exists 
by   which   it   can   be   exercised. 

(The  court  held,  however,  l^iat  the  practice  of  spreading  the 
whole  charge  of  the  lower  court  on  the  record,  and  excepting 
thereto,  was  improper,  and  a  judge  should  not  be  compelled  to 
sign  such  a  bill  of  exceptions.  Baldwin,  J.,  delivered  an 
elaborate   dissenting   opinion.) 

See  also  Briscoe  v.  Ward,  t  Har.  &  J.  (Md.)  165;  State  v.  Judge  of 
the  Eighth  Dist.  Ct.,  35  La.  Ann.  248;  People  v.  Judge,  41  Mich.  726,  49 
N'.  W.  925;  State  v.  Hawcs,  43  Ohio  State,  16;  Reichcnl)ack  v.  Ruddach. 
121  Pa.  St.  18,  15  Atl.  488;  Swartz  v.  Nash,  45  Kan.  341:  Magg  v.  Peter- 
l)augh,  loi  Cal.  583,  36  Pac.  95;  State  v.  Hall,  3  Cold.  (Tenn.)  255;  Cha- 
tcaugay  O.  &  I.  Co.,  Petitioner,  12K  U.  S.  544,  9  Sup.  Ct.  Rep;  Whipple 
V.  Hopkins,  119  Cal.  349,  51  Pac.  535;  People  v.  Gihlions,  54  Til.  App.  617; 
Jollcv  V.  Kol)erts.  50  Tnd.  i;  State  v.  Ramsey.  59  Nch.  518,  81  N.  W.  439: 
Che  Gong  v.  Stearn.s,  16  Ore.  219,  17  Pac.  871  ;  Osl)orne  v.  Prathcr,  83 
Tex.  208.  18  S.  W.  613;  Dillard  v.  Dunlop.  83  Va.  755,  3  S.  E.  383;  State 
V.   Clough.  (*)  Wis.  369,  34   N.  W.  399. 


§    2  TO    INFERIOR    COURTS    Ax\D   JUDICIAL    OI FICKRS.  93 

8.     To  set  courts  in  motion  but  not  interfere  with  their  discre- 
tion. 

JAMES  TURNER,  m  re. 
1832.     Supreme  Court  of  Ohio.     5  Ohio  542. 

Judge   Lane   delivered   the   opinion   of   the   court. 

In  the  court  of  the  common  pleas,  March  term,  1832,  James 
Turner  was  indicted  for  murder.  On  his  arraignment  it  was 
demanded  of  him  in  which  court  he  elected  to  be  tried,  to  which 
demand  he  stood  mute.  Upon  which,  the  court,  "having  advised 
upon  the  matter  of  the  prisoner's  standing  mute,  when  interro- 
gated as  to  whether  he  elected  to  be  tried  in  the  supreme  court, 
upon  the  indictment  found  this  term,  js^^^f  the  opinion  that  the 
court  has  no  jurisdiction  of  the  case,  because  upon  a  former 
indTctment  for  the  same  cause,  the  same  prisoner  elected  to  be 
tried  in  the  supreme  court,  and  because  the  same  indictment  is 
still  pending  and  undetermined."  Upon  this,  Mr.  Hunter,  ^the 
prosecuting  attorney,  at  the  November  term  of  the  supreme 
court  of  Fairchild  county,  moves  the  court  for  a  mandamus, 
commanding  the  judges  to  proceed  in  this  cause,  in  such  manner 
that  the  defendant  may  be  brought  to  trial,  in  due  course  of 
law. 

By  section  3  of  the  act  to  organize  judicial  courts,  pa^er  is 
given  to  the  supreme  court  to  issue  the  writ  of  mandamus,  and 
all  other  writs  not  specially  provided  for.  to  enforce  the  due 
administration  of  right  and  justice  throughout  the  state.  The 
occasions  upon  which  the  writ  is  to  issue  are  not  pointed  out. 
and  it  is  not  necessary  to  recur  to  the  common  law,  to  learn  in 
what  cases  the  writ  is  applicable. 

"The  original  nature  of  the  writ,"  as  is  said  in  3  Burr.  (K.  B.) 
1267,  "and  the  end  for  which  it  was  formed,  direct  upon  what 
occasions  it  shall  be  used.  It  was  introduced  to  prevent  dis- 
order, from  a  failure  of  justice,  or  a  defect  of  police ;  therefore 
it  ought  to  be  used  upon  all  occasions  where  the  law  has  estab- 
lished no  specific  remedy,  and  where  in  justice  and  good  govern- 
ment there  ought  to  be  one."  It  has  become  an  established 
remedy,  is  a  matter  of  every  day's  use,  to  compel  courts  and 
magistrates  to  execute  their  official  duties. 

The  most  usual  object  sought  by  this  writ  is  to  exact  the  exe- 
cution of  some  official  duty  from  a  ministerial  officer;  but  it  is 
equally  applicable  to  compel  courts  to  do  that  justice  which  the 
law  enjoins  them  to  administer.  Whenever  an  inferior  court 
refuses  to  exercise  its  jurisdiction,  the  writ  of  mandamus  is  the 
appropriate    remedy.      Exam]3les    are    numerous    in    the    books,    in 


94  JAMES    TURNER,    IN    RE-.  §    2 

which  this  power  has  been  exercised.  It  has  been  issued  to  the 
quarter  sessions,  to  compel  them  to  give  judgment  for  abating 
ci  nuisance.  Andre\vs  i88.  To  command  them  to  receive  an 
appeal.  Sessions  cases  248.  To  the  court  of  Sandwich,  to  give 
judgment,  in  an  action  of  assault  and  battery,  Stra.  (K.  B.)  113. 
To  a  sherilf's  court,  to  give  judgment  in  a  writ  of  inquiry,  Stra. 
(K.  B.)  392.  To  the  bailiffs  of  Andover,  to  give  judgment  in 
a  depending  case.  2  Barn.  259.  It  has  been  issued  by  the 
Supreme  court  of  New  York,  to  the  sessions,  to  compel  them 
to  give  judgment,  i  Johns.  Cas.  (N.  Y.)  279.  To  the  court  of 
common  pleas,  to  compel  them  to  enter  judgment,  i  Johns.  Cas. 
(X.  Y.)  181;  2  Johns.  Cas.  (N.  Y.)  215,  371;  19  Johns.  (N.  Y.) 
147.  It  has  been  granted  in  Massachusetts,  to  compel  the  court 
of  sessions  to  enter  the  verdict  of  a  jury  in  the  assessment  of 
damages.  9  Mass.  383 ;  5  Mass.  435.  And  it  has  been  issued 
from  the  supreme  court  of  the  United  States  to  a  district  judge, 
to  compel  him  to  execute  his  sentence.  6  Cranch  (U.  S.)  115. 
In  short,  as  said  by  Chief  Justice  Parker,  of  Massachusetts,  2 
Pick.  (Mass.)  414,  by  this  process,  the  superintending  court  can 
compel  the  performance  of  duty  by  all  the  inferior  courts, 
whether  that   duty   be  ministerial   or   judicial. 

These  authorities  leave  no  doubt  that  the  writ  may  issue^  com- 
manding  the  court  to  act ;  but  care  is  to  be  taken  that  it  shall 
not  interfere  with  the  full  and  legitimate  exercise  of  judgment 
in  the  court  to  which  it  is  directed.  It  is  not  a  remedy  adapted 
to  correct  errors,  or  to  constrain  them  to  act  in  a  particular 
manner;  although  it  may  compel  a  judge  to  proceed  to  judg- 
ment, it  will  not  prescribe  what  judgment  to  give.  3  Dall. 
(U.  S.)  45.  In  all  these  cases,  the  full  object  of  the  writ  is 
obtained,  if  it  produces  the  action,  and  calls  forth  the  exercise 
of   jurisdiction. 

In  the  present  case,  the  ]M-isoner  while  arraigned  on  an  indict- 
ment before  the  court  of  common  pleas,  stood  mute.  Instead  of 
instituting  an  inquiry  into  the  cause  of  his  refusal,  as  the  law 
directs,  the  court,  without  plea  from  the  defendant,  and  with- 
out affording  the  attorney  for  the  state  an  opportunity  of  con- 
testing the  position,  assumed  the  fact  th»it  another  indictment 
was  pending  in  this  court  for  the  same  offense,  and  that  the 
pendency  of  it  destroyed  their  jurisdiction.  If  they  had  gone 
further,  and  quashed  the  indictment  for  the  want  of  jurisdiction, 
pcrhaj)s  this  might  have  been  the  exercise  of  such  a  judicial 
discretion,  as  would  have  been  beyond  the  reacli  of  their  power. 
But  this  was  not  done:  thc.coiu-t  abstained  a-ltogether  from  doing 
anything,  and  a  failure  of  justice  i.s  likely  to  arise  from  their 
want  of  action.  We  unite  in  the  o]iinion  that  this  is  a  proper 
case     fi  )r    i!i:in(l;miii>^. 


§  2  TO  infi:ri()r  courts  and  judicial  officers.  95 

The  first  process  in  that  case  must  be  a  rule  to  show  cause. 

See  also  Ex  parte  Loring,  94  U.  S.  418;  United  States  v.  Seaman,  17 
Howard  (U.  S.)  225;  State  v.  St.  Louis  Ct.  of  Appeals,  87  Mo.  374;  People 
V.  Ct.  of  Sessions,  19  N.  Y.  S.  508;  Petaluma  Savings  Bank  v.  Court,  iii 
Cal.  488,  44  Pac.  177;  United  States  v.  Schurz,  102  U.  S.  407;  State  v. 
Cape  Girardeau  Ct.,  y},  Mo.  560;  Brown  v.  Kalamazoo  Circuit  Judge,  75 
Mich.  274,  42  N.  W.  827;  City  of  Emporia  v.  Randolph,  56  Kan.  117,  42 
Pac.  376;  People  v.  McRoberts,  100  111.  458;  State  v.  Kinkaid,  23  Neb. 
641,  2>7  N.  W.  612;  Gunn's  Administrators  v.  County  of  Pulaski,  3  Ark.  427. 


9.     To  compel  the  performance  of  ministerial  duties. 

CROOK.  JUDGE  v.   NEWBERG,  et  al. 

1900.     Supreme  Court  of  Alabama.     124  Ala.  479,  27  So.  432. 

ArPLiCATiON  for  mandamus  by  D.  L.  Newberg  and  Son, 
against   Emmett    F.    Crook,   Judge.      From    a   judgment    in    favor 

■"of   the   plaintiffs,    the    defendant    appeals.      Affirmed. 

Tyson,  J. — This  appeal  is  prosecuted  from  a  judgment  ren- 
dered by  the  circuit  court  of  Anniston  awarding  the  writ  of 
mandamus  to  compel  the  appellant  to  certify  his  incompetency 
as  probate  judge  to  hear  and  determine  the  settlement  of  an 
account  of  o^e__Gammon  as  administrator.  The  settlement  to 
be"  made  "by"  the  administrator  Ts  oiie"  required  under  §§  298  and 
299  of  the  Code  after  declaration  of  insolvency  of  the  estate. 
One  of  the  objections  urged  to  the  incompetency  of  the  appellant 

"urnthe  probate  court,  and  upon  which  in  part  was  based  the  de- 
mand that  he  certify  his  disqualifications  to  hear  and  determine  the 
matters  involved  in  said  settlement,  as  appears  from  the  petition  for 
the  writ,  was  that  S.  L.  Crook,  a  first  cousin  of  the  appellani^js  one„ 
dftTie  sureties  uponThe  bond  of  Gammon  as  administrator.  The  facts 
of  suretyship  and  the  consanguinity  of  the  surety  S.  L.  Crook 
to  the  appellant,  as  alleged,  are  admitted  in  the  answer  to  the 
petition.  It  has  been  too  often  adjudicated  by  this  court  to  be  now 
a  matter  of  doubt,  much  less  of  dispute,  that  sureties  upon  an 
administrator's  bond  are  bound  and  concluded  by  the  decree 
against  their  principal  prin:arily  and  to  the  same  extent  that 
their  principal  is  bound.  Banks  v.  Speers,  97  Ala.  563,  11  So. 
841,  and  authorities  there  cited.  So  then,  the  question  there  pre- 
sented, may  be  said  to  be  this:  Is  a  judge  disqualified  from 
determining    a    cause    in    which    a    judgment    or    decree    must    be 

"TSTclered,  in  which  a  first  cousin,  though  not  a  party  to  the  pro- 
ceeding eo  nouiiuc  has  an  interest  in  the  result  of  the  trial? 


9^  CROOK,    JUDGE   V.    NEWBEKG,    ET    AL.  §    2 

(The  court  held  that  such  first  cousin  is  a  "party"  to  the 
suit  within  the  meaning  of  the  statute  and  that  in  consequence 
the  appellant  was  disqualified  to  act  as  judge.) 

The  next  contention  of  appellant  is  that  mandamus  is  not  the 
proper  remedy  to  require  the  judge  to  certify  his  incompeteiicy 
to  the  proper  officer  to  make  the  appointment  of  a  special  judge. 
The  argument  is  that  the  judge  must  judicially  determine  his 
competency  vcl  non,  and  that  his  decision  of  that  question  must 
be  reviewed  by  appeal.  The  same  argument  was  made  in  the 
case  of  Ex  parte  State  Bar  Association  92  Ala.  113,  8  So.  768. 
as  was  the  contention  that  an  appeal  was  adequate.  We  will 
not  repeat  here  what  was  well  and  conclusively  said  by  Judge 
McClellan  in  refutation  of  both  of  the  contentions,  and  in  hold- 
ing that  mandamus  is  the  proper  remedy.  In  that  case,  the 
judge,  perceiving  that  he  was  incompetent  by  reason  of  interest, 
declined  to  try  the  cause.  Here  the  judge  conceiving  that  he 
is  qualified,  declined  to  certify  his  incompetency.  There  can  be 
no  difference  in  principle  between  the  two  cases.  But  the  case 
of  the  State  v.  Castleberry,  23  Ala.  85,  is  directly  in  point.  The 
county  judge  was  a  surety  upon  the  bond  of  the  defendant,  who 
was  charged  with  bastardy.  The  prosecutrix  moved  the  court 
to  transfer  the  cause  to  the  circuit  court,  upon  the  ground  of  the 
interest  of  the  judge  and  his  consequent  incompetency  to  try  it. 
The  judge  decided  that  he  had  no  interest  which  incapacitated 
him  to  try  the  cause  and  declined  to  make  the  order  transferring 
it  to  the  circuit  court.  Thereupon  the  prosecutrix  applied  to  the 
circuit  court  for  a  writ  of  mandamus  to  compel  him  to  transfer 
the  case,  which  was  awarded.  On  appeal,  this  court,  after 
deciding  that  the  county  judge  was  incompetent  to  try  the  cause 
on  account  of  interest,  said,  "We  entertain  no  doubt  but  that 
mandamus  was  the  proper  remedy  to  compel  the  transfer  of  the 
cause."  In  Graham  v.  People,  iii  111.  253,  it  was  held,  where 
a  county  judge  is  interested  in  an  estate  of  a  deceased  person,  he 
has  no  discretion  to  exercise  as  to  whether  he  will  transfer  the 
matter  in  dispute  to  the  circuit  court  for  adjudication,  and  his 
l)ower  is  limited  to  the  simple  ministerial  duty  to  cause  the 
pa])ers  and  records  to  be  certified  to  that  court  in  confomiity 
with  the  statute,  and  mandamus  lies  to  compel  him  to  do  so  if  he 
refuses.  Said  the  court:  "A  final  objection  urged  by  counsel 
for  the  res])on(lcnt  is  that  mandamus  docs  not  lie  in  this  kind 
of  a  case,  and  People  v.  Mc Roberts,  100  111.  458,  is  referred  to 
in  support  of  the  position.  The  cases  are  essentially  different. 
There  the  judge  had  to  exercise  judgment  and  discretion.  The 
right  to  the  change  depended  ujion  the  sufficiency  of  the  petition, 
and  of  this  the  judge  was  to  determine.  I'ut  here  the  interest 
of  the  juflge  is  a  matter,  knowledge  of  which  exists  in  his  own 


§    2  TO    INFliRIOR    COURTS    AND   JUDICIAL   OFFICERS.  97 

breast,  and  it  renders  him  absolutely  incompetent  to  act, — goes 
to  the  jurisdiction  of  the  court.  There  is  iiothing  for  him^  to 
•exercise  judg-nient  upon.  Xhe  fact  existmg,~fiis'  power  is  limited 
"To  the  simple  ministerial  duty  of  causing  tlie  papers  and  record 
fe'  be  certified,  in  conformjty  with  the  statute." 
"^IVe  have  not  considered  the  other  alleged  ground  of  incompe- 
tency so  ably  argued  by  the  counsel  on  both  sides,  as  a  decision 
of  that  question  is  unnecessary  under  our  view  of  the  case.  The 
judgment   of  the   court  below   must  be   affirmed. 

Whether  a  duty  incumboni  upon  a  court  or  officer  is  ministerial  or  not 
depends  upon  the  nature  of  the  act  to  be  performed  and  not  upon  the  char- 
acter of  the  office.  While  Mandamus  will  lie  to  set  a  court  in  motion  to 
perform  what  may  be  a  pure  judicial  act,  i.  e.,  to  compel  the  exercise  of 
judicial  discretion,  though  in  no  wise  directing  to  what  effect,  or  in  what 
manner  such  duty  shall  be  performed,  when  the  duty  is  ministerial,  Man- 
damus will  lie,  not  only  to  compel  action,  but  to  direct  the  performance 
of  the   specific  ministerial   act. 

A  ministerial  duty  has  been  defined  as  one  to  be  performed  under  a  given 
state  of  facts,  in  a  prescribed  manner,  in  obedience  to  legal  authority. 
and  without  regard  to  or  exercise  o^  the  judgment  of  the  one  doing  it, 
upon  the  propriety  of  its  being  done.  Flourney  v.  City  of  Jeffersonville, 
17   Ind.    169. 

See  also  State  v.  Norton,  20  Kan.  506',  Giboney  v.  Rogers,  32  Ark.  462; 
People  V.  Norton,  16  Cal.  436;  Ex  parte  Graves,  61  Ala.  3S1 :  Water  Co. 
V  Rives,  14  Nev.  431;  Marnns  v.  Givens,  7  Leigh  (Va.)  689;  Chicago,  etc., 
R  Co.  v.  Wilson,  17  111.  128;  State  V.  County  Ct.,  44  Mo.  230;  Kendall  v. 
U.  S.   12  Pet.    OJ.  S.)    534.  ,       .    ^ 

The  writ  lies  to  compel  the  entry  of  a  judgment  when  nothmg  remams 
but  such  entry.  State  v.  Judge  of  4th  Dist.  Ct.,  2S  La.  Ann.  451 ;  Williams 
v.   Saunders,  5  Cold.    (Tenn.)    60;   Corfleyou  v.  Ten  Eyck,  2  Zab.    (N.  J.) 

in  the  Federal  courts,  as  has  already  been  noted.  Mandamus  is  only 
granted  in  aid  of  appellate  jurisdiction.  It  has  been  issued  to  compel  rein- 
statement of  a  cause  dismissed  for  insufficient  reasons.  Ex  parte  Brad- 
street,  7  Pet.  (U.  S.)  634;  Ex  parte  Parker,  131  U.  S.  221  9  Sup.  Ct. 
Rep  708;  To  hear  and  determine  a  motion  for  a  new  trial.  Ex  parte 
United  States,  16  Wall.  (U.  S.)  699;  To  compel"  the  execution  of  a  de- 
cree.    United   States  v.   Peters,  5  Cranch    (U.   S.)    iiS- 


98  HOUGH   V.    WESTERN   TRANSPORTATION    CO.  §    2 

10.     Removal  of  cause  from  State  to  Federal  Courts. 

HOUGH    V.    WESTERN    TRANSPORTATION    CO. 

1864.     Circuit  Court  of  United  States,     i  Biss.  (U.  S.  C.  C.) 
425,  12  Fed.  Cas.  No.  6724,  29  Meyer's  Fed.  Dec.  895. 

Application  for  a  writ  of  mandamus  to  the  superior  cour^  of  Chi- 
cago, directing  it  to  certify  the  case  of  Hough  v.  TransportatiorPCD. 
to  this  court.  The  case  was  instituted  in  such  state  court  agamst  said 
corporation  created  in  New  York.  They  pleaded  to  the  jurisdiction,  to 
which  plea  plaintiff  filed  a  replication  and  defendant  demurred, 
which  was  sustained ;  defendant  then  petitioned  the  court  for 
a  xemQ^l  of  the  cause  according  to  the  twelfth  section  of  the 
judiciary  act  of  1879,  \vhich  was  overruled  by  said  state  court 
on^  the  ground  that  said  application  had  not  been  ma^' iii^time, 
defendant's  appearance  having  previously  been  entered  by  its 
plea  to  the  jurisdiction.  Whereupon  defendant  has  filed  this 
motion  for  a  writ  of  mandamus  against  the  superior  court  of  the 
city  of  Chicago. 

Opinion  by  Drummond,  J. 

An  application  is  now  made  to  this  court  for  a  mandamus 
against  the  superior  court,  requiring  it  in  the  language  of  the 
statute,  to  proceed  no  firrther  in  the  case,  and  to  certify  the  case 
to  this  court,  so  t.hat  this  court  can  take  jurisdiction  of  it. 

The  question  is,  whether  under  the  circumstances  of  the  case, 
the  mandamus  will  lie.  I  think  it  will  not.  Of  course  in  express- 
ing this  opinion,  it  is  not  necessary  for  the  court  to  determine 
whether  the  state  court  decided  properly  in  refusing  the  applica- 
tion  made   by   the   defendant. 

The  only  provisions  of  law,  I  believe,  upon  the  subject  of 
mandamus  by  the  courts  of  the  United  States  arc  contained  in  the 
tliirtecnth  and  fourteenth  sections  of  the  judiciary  act  of  1879. 
1"he  thirteenth  section  provides  tliat  "the  supreme  court  shall  have 
exclusive  jurisdiction  of  all  controversies  of  a  civil  nature  where  a 
state  is  a  party,  except  between  a  state  and  its  citizens  ;  and  except  al- 
so between  a  state  and  citizens  of  other  staucs,  or  aliens,  in  which  lat- 
ter case  it  shall  have  original  but  not  exclusive  jurisdiction.  The  su- 
preme court  shall  also  have  api:)cllate  jurisdiction  from  the  cir- 
cuit courts  and  courts  of  the  several  states  in  the  cases  herein- 
after provided  for  specially ;  and  shall  have  power  to  issue  writs 
of  prohibition  to  tho  district  courts  when  proceeding  as  courts 
nt  admiralty  and  maritime  jurisdiction  ;  and  writs  of  mandamus, 
in   cases   warrnnUd   by   ihc   ])rinciplGS  and   usages  of  law,  to  any 


§    2  TO   INFERIOR   COURTS   AND   JULICIAL   Ol-l- ICE'xS.  99 

courts  appointed  or  persons  holding  offi'Oe  under  the  authority 
of   the   United    States."  -        ' 

The  fourteenth  section  provides  that  "all-  ^le  before-ireiitioned 
courts  of  the  United  States,"  which  of  co.ufse  include  circuit 
courts,  "sJiair  have  power  to  issue  writs  of  scire-' facias;  habeas 
corpus,  and  all  other  writs  not  specially  provided  '-for  by  statute, 
which  may  be  necessary  for  the  exercise  of  their  respective  juris-- 
dictions  and  agreeable  to  the  principles  and  usages  of  la-w,"  etc. 

It  is  under  this  last  clause  that  it  is  contended  that  the  cir- 
cuit court  of  the  United  States  has  power  to  issue  a  writ  of 
mandamus  in  this  case  as  being  a  writ  agreeable  to  the  prin- 
ciples and  usages  of  law,  and  necessary  for  the  exercise  of  its 
jurisdiction. 

It  is  a  little  singular  that  throughout  our  judicial  history  there  has 
been,  so  far  as  we  have  been  able  tO  ascertain,  but  on^  application 
made  to  the  circuit  court  of  the  United  States  for  this  writ, 
wheu^e  a  state  court  has  refused  to  comply  with  the  twelfth  sec- 
tion of  the  judiciary  act.  That  case  was  the  case  in  Tennes- 
see, and  is  referred  to  in  the  case  of  People  v.  Judges,  2  Denio 
(N.  Y.)  197.  This  case  grew  out  of  the  case  of  Kanouse  v. 
Martin,  15  How.  (U.  S.)  198,  which  was  commenced  in  a  state 
court  of  New  York,  and  where  tlie  application  was  made  to  the 
state  court  to  remove  the  cause  to  the- circuit  court  of  the  United 
States.  After  the  application  was  made  the  plaintiff  amended  his 
declaration  so  as  to  make  the  amount  in  controversy  less  than 
$500,  and  thereupon  the  application  was  refused.  The  case  went  to 
the  highest  court  of  the  state,  and  then  to  the  supreme  court  of 
the  United  States.  The  supreme  court  of  the  United  States  reversed 
the  case  on  the  groimd  that  the  application  should  have  been 
granted,  and  that,  whenever  it  was  made,  the  statute  interposed, 
and  declared  that,  if  it  was  within  the  meaning  of  the  twelfth  section 
of  the  judiciary  art,  it  was  not  compete^it  for  the  state  court  to 
take  any  other  steps  in  the  case,  and  that  it  did,  after  the  application: 
was  made,  by  allowing  this  amendment,  and  this  was  an  erroneous 
act.  Judgment  was  therefore  reversed,  and  it  was  held  that  it 
was  the  duty  of  the  court  to  look  into  the  whole  record  and  to  de- 
tennine  whether  the  case  was  within  the  twelfth  section  of  the 
judiciary   act. 

That  was  a'  case  as  I  understand  it,  in  which  the  counsel  for  the 
defeiidant,  instead  of  applying  to  the  circuit  court  of  the  United 
States  for  a  mandamus,  applied  to  the  s-upreme  court  of  the  state 
for  a  mandamus.  The  opinion  of  the  court  was  given  by  Bronson, 
•Chief  Justice,  denying  the  application,  o'n  the  ground  that  the 
fourteenth  section  of  the  judician'  act  gave  the  circuit  court  of 
the  United  States  power  to  issue  the  w^rit  of  mandamus,  and  there- 
,for  the  a[^plicatlon  should  be  made  to  that  court  and  not  to  the 


100  HOUCai    V.    WKSTERX   TRANSI'ORTATIOX    CO.  §    2 

supreme  xourt.  In  this  Qpinion  they  refer  to  the  only  case  to  which 
the  notice  of  this  court  has  been  directed,  which  is  the  case  of 
Spraggins  v.  Hu!nu(i'"ies,  Cooke  (Tenn.)  i6o.  The  judge  says: 
■']  am'iiot  aware  thkt  any  of  the  Federal  courts  have  questioned 
iheir  pcwer  to  act  in  the  same  manner.  If  they  have  power,  there 
is  no  reason, why  this  court  should  interfere."  He  says  also,  "I 
am  aware  that-the  court  of  appeals  in  Virginia  awarded  a  mandamus 
to  an  inferior  court  in  that  state  to  compel  the  removal  of  a  cause 
into  the  circuit  court  of  the  United  States,  Brown  v.  Crippin,  4 
Hen.  &  M.  (Va.)  173.  But,"  he  says,  "until  it  be  settled  that  the 
federal  courts  want  the  power  to  issue  all  such  writs  as  may  be 
necessary  for  the  exercise  of  the  jurisdiction  conferred  upon  them 
by  the  constitution  and  laws,  this  court  cannot  act  without  the 
appearance  of  making  an  officious  tender  of  its  service."  It  was 
for  this  reason  that  the  motion  for  a  writ  of  mandamus  was  re- 
fused. 

I  admit  that  the  case  proceeds  upon  the  ground  that  the  proper 
source  to  apply  to  for  a  writ  of  mandamus  was  the  circuit  court 
of  the  United  States  and  not  to  the  state  courts.  The  question 
then  is  whether  that  is  a  proper  source.  I  think  that  the  view  of 
the  judge  was  incorrect. 

The  rule  laid  down  in  relation  to  writs  of  mandamus  by  the 
supreme  court  of  the  United  States  is  that  it  shall  issue  only  to 
an  officer,  or  to  a  judge,  or  to  a  court,  where  the  duty  to  be  per- 
formed is  a  ministerial  one  simply  and  where  the  judge  or  officer  has 
no  discretion. 

When  he  has  a  discretion,  the  only  thing  the  court  will  do  by 
the  writ  of  mandamus  is  to  compel  him  to  exercise  that  discretion 
by  deciding  the  question  or  case  without  telling  him  how  it  shall 
be  decided.  It  is  only  where  it  is  a  ministerial  duty  that  the  court 
will  compel  him  by  writ  of  mandamus  to  perform  that  duty,  as  by 
signing  a  bill  of  exceptions,  or  in  relation  to  any  other  ministerial 
act  to  be  performed  bv  an'  officer.  Life  &  Fire  Ins.  Co.  v.  Heirs, 
8  Pet.  (U.  S.)  291  ;  Life  &  Fire  Ins.  Co.  v.  Adams,  9  Pet.  (U.  S.) 
^y^,;  Rx  parte  Hoyt,  13  Id.  279;  Ex  parte  Whitney,  id.,  404;  Com- 
missioners of  Patents  v.  Whitely,  4  Wall.  (U.  S.)  522;  Decatur 
V.  I'aulding,  14  Pet.  (U.  S.)'497;  United  States  v.  Guthrie,  17  How. 
(U.  S.y  284;  United  States  v.  Commissioner,  5  Wall.  (U.  S.)  563. 

I  have  np  sort  of  a  doubt  that  it  is  competent  for  the  congress 
of  the  Tnited  States  to  give  tliis  jxiwer  to  the  courts  of  the  United 
States,  but  I  think  they  have  not  yet  done  so.  In  the  case  of  Ken- 
dall V.  United  States,  rcix)rtcd  in  12  Pet.  (T^.  S.)  524,  which  was 
very  elaborately  argued  and  fully  considered,  the  supreme  court  of  the 
United  States,  after  adverting  to  various  cases  says:  "The  result  of 
these  cases  is  that  the  authority  to  issue  the  writ  of  mandamus  to 
an    officer   of   the    United    States,   commanding   him   to    perform    a 


§    2  TO    IiNFERIOR   COURTS   AND   JUDICIAL   OFFICERS.  lOI 

Specific  act  required  by  a  law  of  the  United  States,  is  within  the 
scope  of  the  judicial  powers  of  the  United  States,  under  the  constitu- 
tion, but  that  the  whole  of  that  power  has  not  been  communicated 
to  the  circuit  courts  by  law,  or,  in  other  words,  that  it  was  then  a 
dormant  power,  not  yet  called  into  action  and  vested  in  those 
courts."  The  question  arose  there  in  relation  to  the  power  of  the 
United  States  court  in  the  District  of  Columbia,  and  it  was  as  to  the 
exercise  of  the  power  by  that  court  that  the  question  came  up ; 
but  they  refer  to  power  existing  in  the  circuit  courts  of  the  United 
States,  in  states,  and  say  that  the  whole  judicial  power  has  not 
been  delegated  to  the  circuit  court  in  states.  So  that  it  seems 
to  be  clear  that  it  is  competent  for  Congress  to  vest  this  power 
in  the  circuit  courts  of  the  United  States. 

The  case  in  Denio  is  the  only  case  to  which  the  attention  of 
this  court  has  been  directed.  The  question  is  whether  it  is  binding 
and  conclusive.  I  think  that  it  is  not,  and  that  the  absence  of 
not  only  all  decisions  other  than  this,  but  of  all  the  applications  to  the 
circuit  courts  of  the  I'uited  States,  is  a  very  strong  argun-tent  against 
the  exercise  of  this  power. 

It  may  seem  by  an  examination  of  the  various  decisions  made 
by  the  Supreme  court  of  the  United  States,  that  it  is  only  in  pe- 
culiar cases  that  they  have  exercised  this  power  by  the  writ  of 
mandamus.  I  think  that  considerable  light  may  be  shed  upon 
this  case  by  an  examination  of  the  statute,  which  was  passed  at  a 
very  exciting  period  of  our  history — 1  mean  the  act  of  2d  March, 
1833,  4  U.  S.  Stat,  at  Large,  633.  The  third  section  of  that  act  provi- 
ded "where  suit  or  prosecution  shall  be  commenced  in  any  state  court 
against  an  officer  of  the  United  States  or  other  person,  for  or  on 
account  of  any  act  done  under  the  revenue  laws  of  the  United 
States,  or  under  color  thereof,  or  for  or  on  account  of  any  right, 
authority,  or  title  set  up  or  claimed  by  such  officer  or  other  per- 
son under  any  such  law  of  the  United  States,  it  shall  be  lawful  for 
the  defendant  in  such  suit  or  prosecution,  at  any  time  before  trial 
upon  a  petition  to  the  circuit  court  of  the  United  States  in  and 
for  the  district  within  which  the  defendant  shall  have  been  served 
with  process,  setting  forth  the  nature  of  said  suit  or  prosecution, 
and  verifying  the  petition  by  affidavit,  together  w'ith  a  certificate 
signed  by  an  attorney  or  counsellor  at  law  of  some  court  of  record 
in  the  state  in  which  said  suit  shall  have  been  commenced,  or  of  the 
United  States.  It  shall  be  the  duty  of  the  clerk  of  said  court,  if  the 
suit  were  commenced  in  the  court  below  by  summons,  to  issue  a 
writ  of  certiorari  to  the  state  court,  requiring  the  said  court  to 
send  to  the  said  circuit  court,  the  records  and  the  proceedings  in  the 
said  cause.  And  thereupon  it  shall  be  the  duty  of  the  said  state  court 
to  stay  all  further  proceedings  in  said  cause,  and  the  said  suit  or 
prosecution    upon    the    delivery    of    such    process,    or    leaving    the 


I02  HOUGH    V.    WESTERN   TRAXSPORTATIOX    CO.  ,   §    2 

same  as  aforesaid,  shall  be  deemed  to  be  taken  and  moved  to  the 
said  circuit  court,  and  any  further  proceedings  trial  or  judgment 
therein,  in  the  state  court,  shall  be  wholly  null  and  void."  Of 
course  the  statute  giving  the  right  to  the  court  also  gives,  as  a  neces- 
sary consequence,  the  necessary  means  to  compel  a  compliance  with 
the  writ. 

So  the  congress  of  the  United  States  could  have  done  in 
this  case.  They  have  not  seen  fit  to  do  so.  They  have  given 
certain  legal  discretion  to  the  judge  of  the  state  court,  not  that 
thereby  the  defendant  is  deprived  of  the  right  which  the  statute 
gives  him,  but  that  it  is  competent  for  the  appellate  state  court  to  re- 
dress the  wrong,  if  wrong  has  been  done  to  the  defendant,  by 
correcting  the  error  of  the  state  court  in  which  the  suit  was  brought. 
If  the  highest  court  of  the  state  will  not  do  that  the  defendant  has 
his  remedy  by  writ  of  error  to  the  supreme  court  of  the  United 
States,  which  would  have  jurisdiction  in  such  case.  All  the  cases 
in  which  the  question  has  arisen  have  gone  to  the  supreme  court  of 
the  United  States  in  this  way,  and  the  error  of  the  state  court 
where  any  existed,  has  been  rectified  in  the  supreme  court. 

There  is  a  remark  made  by  Judge  McLean  in  the  case  of  Gordon 
V.  Longest,  i6  Pet.  (U.  S.)  97,  which  also  gives  color  to  the 
application  made  in  this  case.  That  was  a  case  where  the  writ 
was  originally  brought  in  a  state  court.  Application  was  made 
for  its  removal  to  the  circuit  court  of  the  United  States.  It  was 
refused.  The  case  went  to  the  court  of  appeals  for  Kentucky,  and 
was  sent  back.  It  then  went  again  to  the  court  of  appeals,  and 
finally  to  the  supreme  court  of  the  United  States.  That  court 
held  that  the  application  for  the  removal  of  the  cause,  ought  to  have 
been  granted,  and  reversed  the  judgment  of  the  court  of  appeals 
for  that  reason,  and  directed  that  the  cause  should  be  remanded 
with  instructions  that  it  should  be  transmitted  to  the  circuit  court 
of  the  United  States.  In  giving  his  decision  in  this  case,  Judge 
McLean  says :  "A  more  summary  redress  might  have  been  pursued 
by  the  defendant  than  the  one  which  this  court  can  now  give  him." 

I  concede  to  the  counsel  for  the  application  in  this  case  that 
there  can  be  but  little  doubt  that  Judge  McLean  thought  that  it 
was  competent  for  a  circuit  court  of  the  United  States  to  issue 
the  writ  of  mandamus  to  the  court  of  the  state.  That,  I  think  must 
be  the  "more  summary"  remedy  to  which  the  judge  refers,  but 
this  is  a  mere  dictum  of  the  judge:  it  was  not  necessary  to  the  deci- 
sion of  the  case;  and  of  course  is  not  binding  upon  any  other  court 
as  a  decision.  T  have  thought  on  examining  the  various  cases,  that 
it  wouUl  not  have  been  the  ojiinion  of  the  supreme  court  if  the 
jxiint  had  been  made  before  it. 

_Tt_\yilI  be  seen  f ronivvhat  has  been  said  that  there  is  a  reajed^tior 
the  party;  he  is  not  without   redress:  he  can   take  his  exception; 


§    2  TO    INFERIOR    COURTS   AND   JUDICIAL   OFFICERS.  IO3 

the  supreme  court  of  the  state  can  give  him  redress  if  the  lower 
court  has  decided  wrong;  and  if  that  court  will  not,  the  supreme 
'coiirt  of  the  United  States  may.  It  is  true,  that  this  is  a  circuitous 
way  to  have  any  supposed  wrong  remedied,  but  still  I  think  that  it  is 
the  only  way  in  whicli  it  can  be  done.  The  congress  of  the  United 
States  have  not  seen  fit  to  give  this  summary  remedy  by  the  writ  of 
mandamus,  if  it  was  competent  for  them  to  do  it,  and  until  they  have 
done  that,  either  by  express  language  or  by  necessary  implication, 
I  do  not  think  that  this  court  ought  to  exercise  a  doubtful  oower. 
The  application  will  therefore  be  dismissed. 

See  also  Virginia  v.  Rives,  100  U.  S.  313;  In  re  Cronie,  2  Biss.  (U.  S.) 
160;  Fisk  v.  Union  Pac.  R.  R.  Co.,  6  Blatchf.  (U.  S.)  362;  Campbell  v. 
Wallen's  Lessee,  Mart.  &  Yerg  (Tenn.)  266;  Brown  v.  Crippin,  4  Hen. 
&  Munf.    (Va.)    173. 

When  a  circuit  court  of  the  United  States  has  denied  a  motion  to  re- 
mand a  cause  which  has  been  removed  from  a  state  court,  Mandamus  will 
not  lie  from  the  supreme  court  of  the  United  States,  to  the  circuit  court 
to  grant  such  a  motion.     Ex  parte  Hoard,   105   U.   S.  578. 

Mandamus  is  an  appropriate  remedy  to  compel  inferior  courts  to  pro- 
ceed without  an  unnecessary  delay  in  the  trial  of  causes.  State  v.  Oliver, 
116  Mo.  188,  22  S.  W.  637;  Cassidy  v.  Young,  92  Ky.  227,  17  S.  W.  485; 
Justice  V.  Jones,  i  Barn.  (K.  B.)  280;  Detroit,  etc.,  R.  Co.  v.  Gartner, 
95  Mich.  318,  54  N.  W.  946. 

To  receive  a  verdict  and  render  a  judgment  thereon.  State  v.  Knight, 
46  Mo.  83;  People  v.  Woodman,  4  N.  Y.  S.  554;  Smith  v.  Moore,  38  Conn. 
105;    Munkers   v.   Watson,   9   Kan.   669;    Swarthout   v.    McKnight,   99   Mich. 

347,  58  N.  W.  315.  ,     ,      .        .       ,      •  ,    ,      ^T 

Matters  of  pleading  and  practice  will  rarely  be  mterfered  with  by  Man- 
damus, the  proper  and  usual  remedy  being  by  writ  of  error  or  by  an  ap- 
peal. Ex  parte  Poultney,  12  Pet.  (U.  S.)  472;  Flint,  etc.,  R.  Co.  v.  Dono- 
van, 108  Mich.  80,  65  N.  W.  583;  Ex  parte  Lawrence,  34  Ala.  446. 

In  questions  concerning  the  admissibility  of  evidence.  Mandamus  is  never 
a  proper  remedy.  King  v.  Yorkshire,  5  Barn.  &  Ad.  667;  Ex  parte  Smith, 
69  Ala.  528;  But  see  Ex  parte  Mahone,  30  Ala.  49. 


104  MCDONALD    V.    JENKINS.  §    2 

II.     Approval  of  bonds. 
a.     General  rule. 

Mcdonald  v.  jenkins. 

1892.  Court  of  Appeals  of  Kentucky.  93  Ky.  249,  19  S.  W.  594, 

HoLT_,  C.  J. — This  petition  for  a  mandamus  was  filed  in  the 
P^ranklin  circuit  court  to  compel  the  appellant  McDonald,  as  a 
justice  of  the  peace,  to  approve  a  traverse  bond  in  a  proceeding  upon 
a  writ  of  forcible  detainer  which  had  been  tried  before  him.  The 
Code  of  Practice  provides_that_bond  shall  be  given,  with  sufficient 
surety  to  be^approved  by  the  justice,  for  the  costs  of  the  proceeding 
raid  all  damages  caused  by  the  traverse.  It  is  not  admitted  that 
the  surety  offered  was  sufficient..  That  is  now,  and  has  been  all  the 
time,  in  issue.  No  such  abuse  of  discretion  is  shown  as,  according 
to  some  decisions,  authorizes  tire  issuance  of  the  writ ;  and  the  ques- 
tion is  presented  whether  the  writ  will  issue  where  the  justice  has  in 
good  faith  and  in  the  exercise  of  his  discretion  refused  to  accept  the 
surety  upon  the  ground  that  he  is  not,  in  his  opinion,  sufficient,  but 
the  superior  tribunal  that  is.  asked  to  issue  the  writ  is,  from  the 
evidence  before  it,  of  a  different  opinion.  As  there  is  some  con- 
trariety of  decision,  it  may  help  to  guide  us  to  a  correct  conclusion 
to  briefly  note  some  general  and  elementary  principles  of  the  law 
upon  this  subject.  The  use  of  this  writ  is  confined  to  cases  where 
the  person  has  a  clear  legal  right,  and  no  other  adequate  remedy. 
It  can  only  be  invoked  where  without  it  there  would  be  a  failure  of 
justice.  If  the  act  to  be  done  be  a  mere  ministerial  one  commanded 
by  the  law,  if  its  performance  "be  a  mere  ministerial  (luty,  a  mere 
incident  to  the  office, — then_whether  the  person  who  should  do  it  be 
a  judge  or  a  strictly  ministerial  officer,  the  writ  will  lie  to 
compel  performance.  In  other  words,  it  does  not  follow  that  an 
act  is  judicial  because  done  by  a  judge.  For  instance,  a  justice 
acts  as  his  own  clerk;  and  where  he  is  required  by  law  to  do  an 
act  which  in  its  nature  is  ministerial,  and  involves  no  exercise  of 
judgment,  the  writ  will  lie  to  compel  performance  in  case  of  a 
refusal.  Where,  however,  the  act  may  or  may  not  be  done  in  the  dis- 
crctifjn  or  judgment  of  the  party  against  whom  the  writ  is  sought, 
it  can  only  be  invoked  to  set  him  in  motion,  and  not  to  control  his  dis- 
cretion. It  may  be  used  to  compel  action  by  a  judge,  but  not  to  con- 
trr*!  the  discretion  of  his  judgment.  It  is  often  difficult  to  draw  the 
line  lu'twcen  lhf)se  acts  wliich  arc  purely  ministerial  and  those  which 
partake  f)f  a  judicial  character.  The  nature  of  the  act  must  be 
considcri'l.  Its  cliriractcr  nuist  determine  whether  the  writ  will  lie. 
Js  it  in  its  nature  judicial  or  quasi-judicial?     It  is  said  that  in  this 


§    2  TO    INFERIOR    COURTS    AND   JUDICIAL   OFFICERS.  I05 

case,  when  the  justice  had  decided  the  case,  his  judicial  functions 
euifed,  and  that  the  taking  of  the  bond  was  a  mere  ministerial 
act.  He  was  required,  however,  to  take  a  sufficient  bond, — one 
that  would  cover  the  costs  of  the  proceeding,  and  all  damages  that 
might  result  from  the  traverse.  This  embraced  whatever  dam- 
ages might  result  from  withholding  the  possession  during  the 
pendency  of  the  traverse  in  all  courts  to  which  the  case  might  be 
taken,  and  the  reasonable  expenses  of  defending  it.  He  had  not 
only  to  exercise  his  judgment  as  to  the  solvency  of  the  surety,  but 
in  estimate  of  the  probable  damages.  He  had  to  hear  and  weigh 
evidence  upon  these  subjects,  and  then  exercise  his  best  judg- 
ment. It  is  a  general  rule  that  where  an  officer  has  a  discretion, 
it  will  not  be  controlled  by  mandamus,  Swan  v.  Gray,  44  Miss. 
393.  This  rule  is  necessary  to  the  safe  and  pure  administration  of 
justice.  If,  in  cases  where  he  is  required  to  exercise  his  judg- 
ment, he  were  constantly  liable  to  suit,  resulting  in  orders  to  do 
differently,  his  independence  would  be  destroyed,  and  that  public 
confidence  in  official  action,  which  is  so  necessary  in  the  state, 
would  cease  to  exist.  If,  looking  to  any  hardship  that  may  arise, 
it  is  said  that  an  individual  may  suffer  by  this  error,  yet  this  lia- 
bility exists  in  all  official  actions.  If  he  acts  corruptly,  or  designedly 
abuses  his  authority,  he  is  liable  to  action ;  but,  being  a  disinterested 
party,  he  should  not  be  liable  to  the  costs  of  a  suit  where  he  errs 
in  judgment,  when  he  is  required  by  law  to  exercise  this  judgment. 
Usually  when  a  litigant  can  give  security,  which  is  in  fact  suffi- 
cient, he  can  give  such  security  as  will  satisfy  the  doubt  of  the 
officer  who  is  required  to  judge  of  it.  The  approval  or  disapproval 
of  the  bond  requires,  of  course,  the  exercise  of  discretion  and 
judgment.  The  act  is  in  its  nature  judicial.  If  in  such  a  case  he 
may  be  ordered,  against  his  own  judgment,  to  accept  the  bond, 
his  discretion  is  taken  away,  and  the  judgment  of  another  is  substi- 
tuted in  its  place.  The  law  in  one  breath  would  tell  him  to  exer- 
cise his  judgment,  and  in  another  it  would  take  it  away  from  him. 
After  not  only  giving  him  the  right  to  exercise  his  discretion,  and 
requiring  him  at  his  peril  to  do  so,  it  would  take  it  away  from 
him,  and  order  to  do  that  which,  in  his  opinion,  he  ought  not  to 
do.  It  would  subject  to  slavery  his  judicial  opinion,  and  compel 
him  to  err  in  his  judgment.  .  This  is  contrary  to  reason,  and  the 
law  does  not  require  it.  The  writ  will  not  lie  to  correct  the  erroneous 
judicial  or  quasi-judicial  action  of  subordinate  officers  or  tribunals. 
It  has  been  held  that  the  action  of  a  clerk  of  a  court  in  approving  a 
bond,  where  he  is  required  by  law  to  judge  of  the  solvency  of  the 
sureties,  is  quasi-judicial,  and  the  exercise  of  the  power  will  not  be 
controlled  by  mandamus,  McDuffie  v.  Cook,  65  Ala.  430 ;  Insurance 
Co.  V.  Cleveland,  76  Ala.  321.  It  was  the  duty  of  the  justice  to  take  a 
sufficient  bond.     This  necessarily  required  the  exercise  of  discre- 


I06  THOMAS  ADAMSON   V.   LA  FAYETTE  COUNTY  COURT.  §    2 

tion  and  judgment.  There  was  no  admission  that  it  was  sufficient, 
which  would  iiave  obviated  the  need  of  an  exercise  of  judgment. 
The  action  was  at  least  quasi-judicial,  and  therefore  mandamus  does 
not  lie.  The  judgment  is  reversed  with  directions  to  dismiss  the 
petition. 

See  also  McDuffie  v.  Cook,  65  Ala.  430;  Hopkins  v.  Thomas,  80  Ga. 
641,  6  S.  E.  165;  State  ex  rcl.  v.  Judge  of  the  Superior  Ct.,  26  La.  Ann. 
116;  Hawkins  v.  Litchfield,  120  Mich.  390.  79  N.  W.  570;  Bennett  v.  Swain 
Co.,  125  N.  Car.  468,  34  S.  E.  632;  People  v.  Green,  50  How.  Pr.  (N.  Y.) 
500. 

Approval  of  bond  will  not  be  compelled.  Ex  parte  Harris,  52  Ala.  87; 
Keough  V.  Bd.  of  Aldermen,  156  Mass.  403,  31  N.  E.  387;  State  v.  Howard 
County  Ct,  41   Mo.  247;  In  re  Reddish,  45   N.  Y.  App.   Div.  37. 

But  where  the  officer  admits  that  the  bond  is  sufficient.  Mandamus  will 
issue  to  compel  him  to  approve  it.  Copeland  v.  State,  126  Ind.  51,  25  N. 
E.  866. 


b.     Contra. 

STATE  EX  REL.    THOMAS    ADAMSON    v.    LA    FAYETTE 
COUNTY  COURT. 

1867.     Supreme  Court  of  Missouri.     41   Mo.  221. 

Wagner,  J.,  delivered  the  opinion  of  the  court. 

The  case  comes  before  us  on  a  demurrer  to  the  petition,  and 
the  only  question  is  whether  this  court  has  jurisdiction  over  the 
])roceeding.  The  relator  avers  his  title  to  the  office  of  sheriff  of 
La  Fayette  county,  and  that  he  was  duly  elected,  commissioned  and 
qualified,  and  has  acted  as  such  up  to  the  6th  of  June,  1867,  when 
the  respondents  acting  in  the  capacity  of  county  judges  in  said 
county  made  an  order,  which  was  entered  of  record  in  said  court, 
declaring  the  office  of  sheriff  vacant. 

It  is  further  alleged  that  on  the  24th  day  of  May,  1867,  the  county 
court  of  Lafayette  county  caused  an  order  to  be  made  stating  that 
tlic  revenue  of  the  county  for  the  year  1867  would  be  about  $85,000. 
and  requiring  the  relator  as  sheriff  to  make  a  bond  with  sufficient 
security  in  double  that  sum  within  ten  days  therefrom ;  that  on  the 
3d  day  of  June,  1867,  within  the  time  specified,  he  appeared  before 
the  said  court,  then  in  open  session,  and  produced,  exhibited  and 
offered  for  approval  his  bond  as  collector  of  the  revenue,  "with 
good  and  sufficient  sureties,  in  the  penal  sum  of  one  hundred  and 
seventy  tlK)Usand  dollars,  and  conditioned  as  required  by  law; 
that  anticipating  unfair  and  unjust  action  on  the  part  of  the 
said  court,  the  ju<=tices  whertMjf  are  iiersonally  and  politically 
hostile  to  the  relator,  he  took  extraf)r(linary  ]xiins  in  securing  sure- 


§2  TO    INFERIOR    COURTS    AND   JL:1)ICIAL   OFFICERS.  lOJ 

lies,  and  that  thirty-five  well  known  and  responsible  citizens  of  La- 
layette  county,  who  are  owners  of  real  estate  situated  therein,  be- 
came his  sureties  in  said  bond  and  as  such  executed  the  same,  he 
having  first  executed  it  as  principal ;  that  the  said  sureties  are  own- 
ers of  real  estate  in  the  said  county  of  the  value  of  at  least  three 
hundred  thousand  dollars,  subject  to  execution,  over  and  above 
their  debts  and  liabilities,  and  that  this  fact  was  and  is  well  known 
to  the  justices  of  said  county  court ;  but,  that  notwithstanding 
the  premises,  the  said  county  court  actuated  by  a  malice  and  with 
a  determination  to  deprive  him  of  his  said  office,  through  a  corrupt, 
illegal  and  arbitrary  use  of  the  forms  of  the  law,  rejected  and  refused 
to  accept  the  said  bond,  and  also  refused  to  allow  the  relator  to 
prove  the  sufficiency  and  responsibility  of  his  sureties. 

The  petitioner  further  states  that  on  the  6th  day  of  June,  1867, 
the  said  county  court  in  order  to  carry  out  its  malicious,  arbitrary, 
corrupt  and  illegal  intention  and  determination,  made  and  adopted 
an  order  declaring  the  office  of  sheriff  of  said  county  vacant  on 
account  of  the  failure  of  the  petitioner  to  execute  his  bond  as  col- 
lector, and  ordered  a  new  election ;  and  a  mandamus  is  prayed  for 
to  command  and  require  the  county  court  to  accept  and  approve  the 
said  bond,  &c. 

The  resj^ondcnts  demur  to  tlie  petition  on  the  ground  that  the 

county   court   has   a   discretion,  by   law    in   refusing   or   approving 

TSonds  ;  that  the  subject  matter  belongs  to  its  exclusive  jurisdiction, 

"tind  that  having  acted,  this  court  cannot  revise  its  action  or  take 

cognizance  of  its  proceedings  through  the  process  of  mandamus. 

The  writ  of  mandamus  lies  either  to  compel  the  performance  of 
ministerial  acts,  or  is  addressed  to  subordinate  tribunals,  requiring 
them  to  proceed  to  exercise  their  judicial  functions,  and  give 
judgments  in  cases  before  them.  Mandamus  will  not  lie  to  compel 
an  inferior  tribunal  to  give  a  particular  judgment,  or  to  reverse  its 
'decision  where  it  has  once  acted;  its  peculiar  scope  and  province 
being  to  prevent  a  failure  of  justice  through  delay  or  refusal  to 
act.  Where  the  subordinate  tribunal  acts  judicially,  it  may  be  com- 
pelled to  proceed,  but  it  will  be  left  to  act  and  decide  according 
to  its  best  judgment.  In  such  cases  the  party  aggrieved  by  the  deci- 
sion has  his  remedy  either  by  appeal  or  writ  of  error,  and  mandamus 
never  issues  except  where  the  petitioner  has  a  specific  right  and 
no  adequate  remedy. 

The  existence  of  an  equitable  remedy,  such  as  specific  perform- 
ance, constitutes  no  impediment  to  the  remedy  of  mandamus,  People 
V~Brennen.  30  Barb.  (N.  Y.)  522;  10  Wend.  (X.  Y.)  395;  iior 
will  it  be  denied  merely  because  the  relator  may  have  a  remedy 
Tiy  action  for  damages — People  v.  Tavlor,  i  Abb.  Pr.  (N.  S.)  (N, 
'TT^og;  S.  C.  30  How.  Pr.  (X.  Y.)  78.  It  is  sufficient  if  the 
relator  has  no  other  remedv  for  the  specific  right  which  he  claims. 


Io8  THOMAS  ADAMSON   V.   LA   FAYETTE  COUNTY   COURT.  §    2- 

Thus,  it  has  been  deterniined  in  Xew  York  that  the  commissioner 
of  jurors  is  not  a  judicial  officer  but  a  ministerial  officer  within 
the  rule.  The  act  of  the  commissioner  of  jurors  determining_uj221'' 
the  sufficiency  of  the  excuse  relied  on  by  such  an  applicant,  is  noLa 
judicial  act  within  the  rule  relating  to  mandamus.  It  is  true,  he  has- 
to  decide  on  the  sufficiency  of  the  excuse  ofifered  by  the  juror  to  have 
his  name  stricken  from  the  list  of  jurors ;  but  still  the  nature  of  that 
excuse  and  the  duty  of  the  officer  are  defined  by  statute  clearly ;  and 
when  the  truth  of  the  fact  relied  on  is  shown  to  him,  he  has  no  dis- 
cretion to  exercise,  and  has  no  right  to  keep  the  name  of  the  juror 
on  the  list — People  v.  Taylor,  supra. 

In  Dunklin  County  v.  District  Ct.,  23  Mo.  449,  the  court  said  that 
the  writ  issued  "in  order  to  prevent  disorder  from  a  failure  of 
justice  or  defect  of  police,  and  is  therefore  granted  only  in  cases 
where  the  law  has  provided  no  specific  remedy,  and  in  justice  and 
good  government  there  ought  to  be  one.  It  does  not  Ho  to  correct 
the  errors  of  inferior  tribunals,  by  annulling  what  they  have  done 
erroneously,  nor  to  guide  their  discretion,  nor  to  restrain  them 
from  exercising  power  not  delegated  to  them ;  but  it  is  emphatic- 
ally a  writ  requiring  the  tribunal  or  person  to  whom  it  is  directed^ 
to  do  some  particular  act  appertaining  to  their  particular  duty, 
and  which  the  prosecutor  has  a  legal  right  to  have  done." 

Now,  is  the  approval  or  rejection  of  a  sherifif's  bond  by  the 
county  court  the  exercise  of  such  judicial  function  or  discretion 
as  will  preclude  this  court  from  any  supervisory  control  of  its  action? 
The  G.  S.  §  2,  p.  113,  provides  that  the  sheriiT  shall  give  bond 
and  security  to  the  state,  to  the  satisfaction  of  the  county  court. 
The  only  duty  of  the  court  is  to  be  satisfied  that  the  bond  and 
security  is  sufficient.  There  is  nothing  presented  before  the  tribunal 
for  adjudication,  and  its  action  is  not  the  exercise  of  a  judicial 
discretion  or  judgment  within  the  meaning  of  the  rule.  The  ap- 
proval or  rejection  of  the  bond  is  essentially  a  ministerial  act^diough 
coupled  with'  a  discretion.  When  the  law  devolves  upon  an  oMcer 
the  exercise  of  a  discretion,  it  is  a  sound  legal  discretion,  not  a 
capricious,  arbitrary  or  opprcssii'c  one.  In  a  case  like  the  one' pre- 
sented here,  if  this  court  has  no  jurisdiction  the  petitioner  would 
stand  in  the  anomalous  attitude  of  a  person  having  a  clear  specific 
right,  and  yet  be  entirely  remediless  by  law.  A  hostile  court  could 
remove  any  sheriff  in  the  state  and  vacate  his  office  by  declaring' 
his  bond  insufficient,  and  arbitrarily  refusing  to  hear  any  testi- 
mony in  regard  to  the  solvency  and  pecuniary  responsibility  of  his 
sureties.  If  the  county  court  acts  independent  of  all  supervision, 
and  its  discretion  is  exclusive  and  uncontrolla])lc,  the  result  above 
indicated  may  follow,  and  there  is  tio  redress.  It  is  true  that  the 
judges  may  be  punished  for  malfeasance  in  office,  but  that  fur- 
nishes no  remedy  to  the  person  that  is  deprived  of  his  rights.     A 


§    3  TO    PUBLIC    OFFICERS.  IO9 

discretion  delegated  to  an  officer  is  a  sound  legal  discretion,  the 
meaning  of  which  is  well  known  and  understood  in  the  law,  and 
is  not  an  unlimited  license  to  the  officer  to  act  and  do  as  he  pleases, 
irrespective  of  restraint.  The  universal  practice  has  been,  and 
it  is  doubtless  the  most  satisfactory  way  of  proceeding  in  determin- 
ing the  sufficiency  of  a  bond,  .to  examine  the  parties  to  the  bond 
who  haye  signed  it  touching  their  responsibility,  and  also  other 
witnesses  who  are  conversant  with  their  means,  in  open  court, 
and  we  are  at  a  loss  to  know  why  this  privilege  was  denied  the  re- 
lator in  this  case.  Pie  had  the  right  to  introduce  evidence  con- 
cerning the  sufficiency  of  the  bond,  and  it  was  the  duty  of  the  court 
to  hear  the  same.  §  3,  Art.  4,  of  the  State  Constitution  invests 
this  court  with  the  power  of  issuing  mandamus  and  other  remedial 
writs,  and  declares  that  it  shall  have  a  superintending  control  over 
all  inferior  courts  of  law.  The  citizen  has  the  undoubted  right  to 
appeal  to  this  remedial  process  in  a  proper  case,  when  he  would  be 
otherwise  without  a  remedy ;  and  here  if  we  have  no  authority  to  in- 
terfere, the  action  of  the  county  court  would  be  final,  for  neither 
appeal   or  writ  of  error  will   lie  in  this  instance. 

Our  opinion  is  that  the  demurrer  should  be  overruled.  The  other 
judges  concur. 

See  also  State  ex  rel.  v.  Lafayette  County  Ct.,  41  Mo.  545;  Beck  v. 
Jackson,  43  Mo.  117;  State  v.  County  Ct.,  44  Mo.  230;  State  v.  Wear, 
37  Mo.  App.  325. 


Section  3. — Mandamus  to  Public  Officers. 

I.     In  general. 

AMERICAN  CASUALTY  AND  SECURITY  CO.  v.   FYLER. 

1891.     Supreme  Court  of  Connecticut.     60  Conn.  448,  22  Atl. 
494,  25  Amer.  St.  Rep.  337. 

Andrews,  C.  J. — The  plaintiff,  a  corporation  organized  under  the 
laws  of  the  State  of  Maryland,  applied  to  the  defendant,  who  is 
the  insurance  commissioner  of  this  state,  for  the  permission  to 
transact  in  this  state  insurance  business  "against  loss  and  damage 
caused  by  accident  to  any  person  or  property  arising  from  explosion 
of  steain  boilers  or  other  causes,  employers'  liability  insurance,  and 
the  insurance  of  the  fidelity  of  persons,  employed  in  positions  of 
trust."  The  defendant  heard  the  application,  and  at  the  request  of 
the  plaintiff  gave  a  second  hearing.  Then,  after  consideration,  he, 
declined  to  grant  to  the  plaintiff  the  permission  it  had  asked  for. 
The  plaintiff  thereupon  made  application  to  the  superior  court  for 
a   writ   of  peremptory   niandamtis^j:oininanding   the   defendant  to 


no  AMERICAN   CASUALTY  AND  SECURITY   CO.  V.  FYLER.  §    3 

permit  the  plaintiff  to  do  in  this  state  the  kinds  of  business  above 
mentioned.  The  defendant  accepted  service  of  the  appHcation  so 
made  to  the  superior  court,  and  that  appHcation,  by  consent  of  all  the 
parties  has  been  treated  as  the  alternative  writ. 

On  the  return  day,  the  defendant  came  into  court,  and  moved 
that  the  alternative  writ  be  quashed.  The  court  heard  argument, 
and  indicated  that  the  motion  ought  to  be  granted,  unless  the  writ 
should  be  amended,  and  gave  the  plaintiff  time  in  which  to  amend. 
The  plaintiff  neglected  to  make  any  amendment,  and  the  motion 
was  granted.     The  plaintiff  now  appeals  to  this  court. 

The  principle  upon  which  persons  holding  public  office  may  be 
compelled  by  a  writ  of  mandamus  to  perform  duties  imposed  upon 
them  by  law  has  been  pretty  clearly  defined  and  adhered  to  in  numer- 
ous cases  in  this  court  and  in  courts  of  other  states :  Freeman  v. 
Selectmen  of  New  Haven,  34  Conn,  406;  Seymour  v.  Ely,  37  Conn. 
103  ;  Batters  v.  Dunning,  49  Conn.  479 ;  Atwood  v.  Partee,  56  Conn. 
80;  United  States  v.  Black,  128  U.  S.  40;  Kendall  v.  United  States, 
12  Pet.  (U.  S.)  524;  Decatur  v.  Paulding,  14  Pet.  (U.  S.)  497; 
United  States  v.  Guthrie,  17  How.  (U.  S.)  304;  Howland  v.  El- 
dredge,  43  N.  Y.  457;  People  v.  Brennan,  39  Barb.  (U.  S.)  651; 
Smith  V.  Mayor,  i  Gray  (Mass.)  •J2. 

The  principle  set  forth  in  these  authorities  is,  that  a  writ  of  man- 
damus may  issue  where  the  duty  which  the  court  is  asked  to  enforce 
is  the  performance  of  some  precise,  definite  act,  or  is  ohe"of  a 
class  of  acts  purely  ministerial  and  in  respect  to  which  the  officer 
has  no  discretion  whatever,  and  the  right  of  the  party  applying 
for  it  is  clear  and  he  is  without  other  adequate  remedy ;  and  that 
the  writ  will  not  issue  in  a  case  where  the  effect  of  it  is  to  direct 
or  control  an  executive  officer  in  the  discharge  of  an  executive  dut> 
involving  the  exercise  of  discretion  or  judgment.  The  rule  is  stated 
very  clearly  by  Mr.  Justice  Bradley  in  United  States  v.  Black,  128 
U.  S.  40.  He  says :  "The  court  will  not  interfere  by  mandamus 
with  the  executive  officers  of  the  government  in  the  exercise  of  their 
ordinary  official  duties,  even  where  those  duties  require  the  inter- 
pretation of  the  law,  the  court  liaving  no  appellate  power  for  that 
purpose ;  but  where  they  refuse  to  act  in  a  case  at  all,  or  where, 
by  a  special  statute  or  otherwise,  a  mere  ministerial  duty  is  imposed 
upon  them, — that  is,  a  service  which  they  are  bound  to  perform 
without  further  question, — then  if  they  refuse  a  mandamus  may 
l)c  issued  to  compel  them."  The  same  rule  is  given  in  High  Extr. 
I  -eg.  Rem.  {5  42,  where  that  author  adds  :  "Indeed,  so  jealous  are  the 
courts  of  encroaching  on  the  discretionary  powers  of  public  officers 
in  any  manner,  that,  if  any  reasonable  doul)ts  exist  as  to  the  question 
of  discretion  or  want  of  discretion,  they  will  hesitate  to  interfere. 
preferring  rather  to  extend  the  benefit  of  the  doubt  in  favor  of  the 
officer."     "A    ministerial   act   is  one   which   a  person   performs,   in 


§    3  TO    I'UPXIC    OFFICERS.  Ill 

a  given  state  of  facts,  in  a  prescribed  manner,  in  obedience  to  the 
mandate  of  legal  authority,  without  regard  to  or  the  exercise  of 
his  own  judgment,  upon  the  propriety  of  the  act  being  done."  Flour- 
noy  V.  City  of  Jefifersonville,  17  Ind.  169,  79  Am.  Dec.  468. 

The  subject  of  insurance  engages  nearly  one. hundred  and  forty 
sections  of  the  general  statutes,  and  covers  more  than  thirty  pages 
of  the  statute-book.  All  these  sections  taken  together,  form  a 
complete  and  symetrical  branch  of  the  executive  government  of  the 
state,  which  in  common  speech  is  called  the  insurance  department. 
The  defendant  is  at  the  head  of  that  department.  His  duties,  are 
generally,  that  he  "shall  see  that  all  the  laws  relating  to  insurance 
companies  are  faithfully  executed."  This  alone  vests  him  with  a 
wide  range  of  discretion  and  judgment. 

But  in  addition  to  this  general  description  of  his  duties,  there 
are  repeated  sections  which  imposes  upon  him  in  terms  the  exercise 
of  discretion.  (Here  the  court  enumerated  and  commented  upon  the 
several  sections  of  the  general  statutes  dealing  with  the  authority 
and  duties  of  the  insurance  commissioner.)  Throughout  all  these 
sections  the  authority  given  to  the  defendant  is  administrative,  or 
quasi-judicial,  rather  than  ministerial:  Perry  v.  Reynolds,  53  Conn. 
527- 

It  is  admitted  that  there  is  no  statute  or  rule  of  law  that  in  terms 
makes  it  the  duty  of  the  defendant  to  admit  the  plaintiff  to  do  in 
this  state  the  kinds  of  business  specified  in  the  application.  If  it  fs 
his  duty  so  to  admit  the  plaintiff,  it  is  because  the  duty  falls  within 
the  ordinary  duties  of  his  office ;  and  this  must  be  gathered  from 
the  construction  of  the  insurance  statutes.  The  defendant  has  con- 
strued these  statutes  as  requiring,  or  at  least  as  authorizing,  him  to 
refuse  the  plaintiff's  application.  The  plaintiff  insists  that  such 
construction  is  wrong.  The  whole  contention  of  the  plaintiff's 
counsel  is,  that  the  statutes  of  this  state  respecting  insurance,  if 
construed  in  the  light  of  the  policy  of  this  state  towards  the  insur- 
ance companies  of  other  states,  and  in  the  light  of  state  comity, 
would  make  it  the  duty  of  the  defendant  to  grant  the  plaintiff's 
request ;  and  they  say  that  their  interpretation  of  these  statutes 
is  too  obviously  correct  as  to  admit  of  no  dispute,  and  therefore 
the  duty  which  they  ask  that  the  defendant  should  perform  is  purely 
a  ministerial  one.  The  contention,  however,  involves  a  contradic- 
tion, Tiie  construction  of  a  statute  is  not  a  ministerial  act ;  it  is 
the  exercise~or"] udgment.  Tf  it  is  the  duty  of  the  defendant  to  ad- 
mit of'not'toaclmirtlieplaintiff  to  do  business  in  this  stare  according 
to  the  interpretation  to  be  put  on  the  insurance  statutes,  then  the 
admitting  or  refusing  to  admit  involves  the  exercise  of  discretion 
and  judgment.  It  is  precisely  the  same  kind  of  a  duty  which  select- 
men perform  in  respect  to  the  admission  of  electors :  Perry  v. 
Reynolds,  53  Conn.  527 ;  or  assessors  in  respect  to  the  liability  of 


112  POND    V.    PARROTT,  §    3 

property  to  taxation;  Goddard  v.  Seymour,  30  Conn.  394.  It  is 
not  a  purely  ministerial  act,  and  a  mandamus  ought  not  to  issue. 

If  the  court  was  of  the  opinion  that  the  defendant's  construction 
of  the  insurance  statutes  was  an  incorrect  one,  it  could  not  mter- 
fere  bv  way  of  mandamus.  That  would  be  to  substitute  the  judg- 
ment of  the  court  for  the  judgment  of  the  officer  appointed  by  law, 
and  would,  in  effect,  make  the  court  the  insurance  commissioner 
instead  of  the  defendant. 

"If  a  suit  should  come  before  this  court  which  involved  a  con- 
struction of  any  of  these  laws,  the  court  certainly  would  not  be 
bound  to  adopt  the  construction  given  by  the  head  of  a  department. 
And  if  they  suppose  his  decisions  to  be  wrong,  they  would,  of  course, 
so  pronounce  in  their  judgment.  But  their  judgment  upon  the 
construction  of  a  law  must  be  given  in  a  case  in  which  they  have  ju- 
risdiction, and  in  which  it  is  their  duty  to  interpret  the  act  of 
congress,  in  order  to  ascertain  the  righc  of  the  parties  before  them. 
The  court  could  not  entertain  an  appeal  from  the  decision  of  one 
of  the  secretaries,  nor  revise  his  judgment  in  any  case  where  the 
law  authorizes  him  to  exercise  discretion  or  judgment.  Nor  can 
it,  by  mandamus,  act  directly  upon  the  officer,  and  guide  and  control 
his  judgment  or  discretion,  in  the  matter  committed  to  his  care, 
in  the  ordinary  discharge  of  his  official  duties."  Decatur  v.  Paul- 
ding. 14  Pet.  (U.  S.)  497.  See  also  United  States  v.  Guthrie,  17 
How.  (U.  S.)  284;  Commissioner  of  Patents  v.  Whiteley,  4  Wall. 
(U.  S.)  522;  Gaines  v.  Thompson,  7  Wall.  (U.  S.)  347;  Freeman 
v.  Selectmen  of  New  Haven,  34  Conn.  406. 

Tested  by  these  authorities  herein  brought  together,  it  is  plain 
that  the  alternative  writ  in  this  case  does  not  state  facts  which 
entitle  the  plaintiff  to  a  peremptory  mandamus,  and  that  the  mo- 
tion to  quash  was  properly  granted. 

There  is  no  error  in  the  judgment  appealed  from. 


POND  V.  P/XRROTT. 

1875.     Supreme  Court  of  Errors  of  the  State  of  Connecticut. 

42  Conn.  13. 

pAKDi-.E,  J. — The  common  council  of  the  city  of  Bridgeport  is  au- 
thorizcfl  by  the  city  charter  to  elect  four  police  commissioners,  who, 
with  the  mayor  constitute  the  board  of  police  commissioners,  the 
duty  (»f  wliich  board  is  to  nominate  to  the  common  council  suitable 
per.sons  to  fill  the  vacancies  occurring  in  the  police  department.  Both 
the  relator  .ind  the  respondent  were  members  of  the  board  of  police 
commissioners  on  the  24th  of  May.  1873. 

The   relator   alleges   that    on    that   da\-    the    rcsi^ondcnt   was,   and 


§    3  TO    PUr.LIC    OFFICERS.  II3 

ever  since  has  been,  the  clerk  of  the  board  of  the  poHce  commis- 
sioners,  ancl_that  it  was  his  duty  as  said  clerk  to  make  and  keep 
a"true~ancl  correct  record  of  th.cir  doinL^s ;  tliat  as  such  clerk,  the  re- 
^ondent,  by  error  and  mistake,  failed  to  make  a  correct  record 
oTTTertain  votes  passed  b}'  the  board  on  that  day,  and  made  an 
incorrect  and  tmtrue  record  thereof,  "in  this,  to  wit : — instead__of_ 
causing  the  record  to  ^state  that  Williarn  Anderson  was  nominated 
by" "^^d - buaitf '•a""]Toliceman"iiTr''£He  pTace'"or"JPaTficI<;  Bracken,  and 
tnat^lS^orman'StaiT"  was^'noiiiTna^^^  board  as  policeman  in 

"flTr^are^  of  Barney  Farrell,  he,  the  said  clerk  of  said  board,  did 
'^tidd  to'the  record  of  said  meeting  of  May  24th,  after  the  words,  "Wil- 
liam Anderson,"  the  words  "in  place  of  Barney  Farrell;"  and  after 
ttie"words  "Norman  Starr,"  did  add  the  words  "in  place  of  Patrick 
Bfackeirl;.  so  that  said  record  as  so  made  by  said  clerk,  did  and  does 
"state  that  said  Anderson  was  nominated  by  said  board  in  place  of 
Barney  Farrell,  w^hen  in  fact  and  in  truth  the  said  Anderson  was 
nominated  by  the  said  board  in  the  place  of  Patrick  Bracken  ;  and 
does  also  state  that  said  Starr  w^as  nominated  in  place  of  Patrick 
Bracken,  w^hen  in  truth  and  in  fact  the  said  Starr  was  nominated 
by  the  board  in  the  place  of  the  said  Barney  Farrell ;"  and  that  the 
respondent  has  always  refused  to  correct  the  said  record. 

T^ie^relator  asks  the  court  of  common  pleas  to  issue  the  writ  of 
mandamus,  requiring  the  respondent  to  correct  the  record  in  the 
matter  above  referred  to.     The  respondent  demurs  to  the  petition, 
"ancl 'the  case  is  reserved  for  the  advice  of  this  court. 

JJhe  city  charter  does  not  prescribe  the  form  or  the  manner  in 
which  the  board  of  police  commissioners  shall  make  known  their 
nominations  of  persons  to  fill  vacancies  in  the  police  department. 
They  may  appear  in  person  before  each  of  the  two  branches  of  the 
common  council  while  in  session,  and  orally  make  the  nominations : 
or  they  may  send  to  the  same  body  a  written  communication  signed 
by  themselves,  containing  the  list  of  nominees.  ^  ThS-.l^-^^-.b.SS  _not_ 
created  the  office  of  clerk  of  the  board  of  police  commissioners; 
it  does  not  compel  them  to  have  a  clerk  for  the  purpose  of  recording 
their  acts. 

The,. respondent,  himself  one  of  the  police  commissioners,  upon 
request  from  his  associate  members,  undertook  to  make  a 
"memorandum  of  certain  nominations  made  by  the  board  and  transmit 
a-  list  thereof  to  the  common  council.  He  did  not  thereby  become 
the  incumbent  of  an  ofifice  known  to  the  law ;  he  did  not  enter  upon 
the  discharge  of  any  duty  imposed  upon  him  by  law ;  he  voluntarily 
assumed  the  performance  of  a  service.  He  could  lay  down  the 
burden  whenever  he  desired  to  do  so;  the  law  could  not  force  upon 
hirnTthe  continuation  or  the  completion  of  the  work. 

The  writ  of  mandamus  lies  to  compel  a  public  officer  to  perform 
a  duty  concerning  which  he  is  vested  with  no  discretionary  power 


// 


114  POND  V.   PARROTT.  §    3 

and  which  is  either  imposed  upon  him  by  some  express  enact- 
ment or  necessarily  results  from  the  office  which  licJioIds.  The 
respondent's  undertaking  being  private  and  unofficial  in  its  charac- 
ter, this  writ  does  not  concern  itself  as  to  the  manner  in  which 
he  performs  it. 

Again,  inasmuch  as  the  law  has  not  clothed  him  with  power, 
to  the  exclusion  of  all  others,  to  make  a  record  of  the  proceedings 
of  said  board  and  to  communicate  their  nominations  to  the  common 
council,  there  would  seem  to  be  no  necessity  for  this  extraordinary 
remedy:  a  majority  of  the  board  can  at  any  time  notify  the  com- 
mon council  that  the  respondent  has  inaccurately  performed  that 
which  he  had  undertaken  to  do ;  they  can  present  a  corrected  list 
of  nominees ;  the  council  can  receive  it ;  his  error  in  no  manner 
fetters  the  action  of  either  body  in  the  premises ;  he  cannot  'con- 
clude them  by  anything  which  he  has  done  or  omitted  to  do. 

In  Samis  v.  King,  40  Conn.  304,  which  arose  from  a  difference 
between  the  police  commissioners  on  the  one  side  and  the  council 
on  the  other,  this  court,  speaking  of  the  record  now  under  con- 
sideration, said  for  the  purposes  of  that  case,  that  it  was  duly  cer- 
tified by  the  clerk  of  the  board  and  was  properly  admitted  by  the 
superior  court  as  evidence  of  the  doings  of  the  police  commission- 
ers. The  relator  argues  that  this  remark  lifts  the  respondent  to  the 
rank  of  a  public  ministerial  officer  and  places  him  within  reach  of 
this  writ.  But  we  think  that  it  goes  to  this  extent  only ;  that,  as 
he  made  a  record  of  the  nominations  and  transmitted  a  list  of  them 
to  the  common  council  at  the  request  and  as  the  agent  of  his  associate 
members  of  the  board,  it  might  under  certain  circumstances  be  ad- 
mitted in  evidence  against  them  as  tending  to  prove  what  they  did, 
not  intending  thereby  to  declare  it  to  be  a  record  of  so  high  and 
solemn  a  character  as  to  import  absolute  verity  and  be  conclusive. 
Many  entries  and  memoranda  are  in  a  certain  sense  records  and  are 
admissible  in  evidence,  and  yet  are  not  subject  to  correction  by  man- 
damus. 

We  advise  the  court  of  common  pleas  that  the  demurrer  is  well 
taken  and  that  the  petition  is  insufficient. 

In  this  opinion  the  other  judges  concurred. 

Sec  also  Fox  v.  McDonald,  loi  Ala.  51,  13  So.  416;  State  v.  Houston, 
40  La.  Ann.  393;  People  v.  Morton,  156  N.  Y.  136,  50  N.  E.  791;  Ham- 
ilton V.  State,  3  Tnd.  452;  Speed  v.  Common  Council,  97  Mich.  198,  56  N. 
W.  570;   People  V.  York,  53  N.  Y.  S.  947. 


§    3  TO    PUBLIC    OFFICERS.  II 5 

THE  COUNCIL  OF  GLENCOE  v.  OWEN. 
1875.     Sii'REMi-:  Court  of  Illinois.     78  111.  382. 

Mr.  Justice  Sciiolfield  delivered  the  opinion  of  the  court. 

(Part  of  opinion  omitted.) 

The  next  question  to  which  our  attention  is  invited,  is,  does  the 
])etition  show  sufficient  grounds,  conceding,  as  we  must,  that  its 
allegations  are  true,  for  issuing  the  peremptory  writ? 

The  allegations  material  to  the  question  are : — The  village  of  Glen- 
coe  is  incorporated  under  a  special  charter ;  that  on  the  i6th  day  of 
Jtrt3^""i874,  a  petition  signed  by  thirty  voters  oTthe  village,  among 
whom  was  tlTe  rclaUir,  was  presented  to  the  coinicil  of  the  village, 
(IHe  president  and  trustees  of  said  village,  in  whom  all  legislative 
authority  is  vested,  being  designated  in  the  village  charter  as  the 
"Council  of  Glencoe,")  which  council  was  then  in  session,  request- 
ing the  council  to  submit  the  question,  whether  said  village  will  be 
organized  as  a  village  under  the  act  of  the  legislature  of  this  state, 
in  force  July  i,  1872,  entitled  "An  act  to  provide  for  the  incorpora- 
tionTof-xrities  and  villages, "jfe^Iie^decision  of  the  legal  voters  of  said 
village;  that,  at  the  same  time  a  motion  was  made  by  a  member  of 
THe  council  that  the  question  be  submitted  to  the  voters  of  the  village, 
at  an  election  to  be  called  for  that  purpose  on  the  4th  day  of  August, 

1874,  which  motion  was  laid  over  by  a  vote  of  the  council,  until  the 
next  meeting  thereof ;  that,  at  the  next  meeting  of  the  council,  no 
action  was  had  on  the  petition ;  that,  at  a  meeting  of  the  council 
held  on  the  loth  day  of  August,  1874,  motion  was  made  that  the  elec- 
tion prayed  by  the  petition  be  held  on  the  first  Tuesday  of  October, 
1874;  another  member  of  the  council  moved  to  amend  this  motion 
by  substituting  the  first  Tuesday  of  April,  1875,  for  the  first  Tues- 
day of  October,  1874,  which  was  adopted ;  and  the  council  then  or- 
dered the  election  prayed  for  to  be  held  on  the  first  Tuesday  of 
April,  A.  D.  1875,  but  did  not  designate  any  place  for  holding  the 
election,  or  select  any  judges  therefor;  nor  did  they  cause  any  notice 
to, be  given  of  the  time  and  place  of  holding  the  election,  and  they 
have  taken  no  other  action  in  regard  to  the  election. 

It  is  alleged  that  the  designation  of  the  first  Tuesday  in  ^-P^i^* 

1875,  is  an  unreasonable  postponement  of  the  time  of  holding  the 
'election  prayed  for ;  that  it  is  the  day  designated  by  the  present  vil- 

fage  cTiarter  for  holding  the  annual  election  for  village  officers ; 
that  the  designation  of  such  time  was  made  with  the  purpose  and  in- 
teirtion  of  unlawfully  postponing,  and  defeating  the  will  of  the  voters 
of  the  village  upon  the  question  of  reorganization ;  and  it  is  stated 
'as  the  opinion  of  the  relator,  that  it  is  the  intention  of  a  majority  of 
^€  council  to  defeat  said  election  by  a  failure  to  discharge  the  duties 
'enjoined  by  law. 


Il6  THE  COUNCIL  OF  GLENCOE  V.  OWEN.  §    3 

It  is  argued  by  the  respondent,  the  fixing  of  the  time  at  which  the 
election  shall  be  held,  is  a  matter  of  discretion,  in  which  the  council 
cannot  be  interfered  with  by  the  courts. 

Bv  §  I,  art.  1 1  of  the  statute  relating  to  cities,  "villages  and  towns," 
(R.  L.  1874,  p.  242),  it  is  enacted: — "Any  town  in  this  state,  incor- 
porated either  under  any  general  law  for  the  incorporation  of  towns, 
and  acts  amendatory  thereof,  or  under  any  special  act  for  the  incor- 
poration of  any  town  or  village,  may  become  organized  as  a  vil- 
lage, under  this  act,  in  the  manner  following :  Whenever  any  thirty 
voters  in  such  town  shall  petition  the  trustees  thereof  to  submit  the 
question,  whether  such  town  will  become  organized  as  a  village, 
Whder  this  act,  to  the  decision  of  the  legal  voters  thereof,  it  shall  be 
the  duty  of  the  president  and  the  trustees  to  submit  the  same  accord- 
ingly, and  to  fix  a  time  and  place  within  such  town  for  holding  such 
election,  and  to  appoint  the  judges  to  hold  such  election,  and  to  give 
notice  of  the  time,  place  and  purpose  of  such  election,  by  causing  at 
least  five  notices  thereof  to  be  posted  in  public  places  in  such  town, 
for  at  least  fifteen  days  prior  to  holding  such  election." 

It  is  obvious,  the  council  had  no  discretion,  when  the  proper  peti- 
tion was  presented,  whether  the  prayer  of  the  petition  should  be 
granted  or  not.  The  petition  being  in  conformity  with  the  statute, 
it  was  the  plain  duty  of  the  council  to  act  upon  it  at  the  earliest  con- 
venient moment,  fix  the  time  and  place  of  holding  the  election,  select 
the  required  judges  therefor,  and  give  the  proper  notice  thereof. 
But,  inasmuch  as  no  time  is  designated  by  the  statute,  when  the  elec- 
tion shall  be  held,  there  was  some  discretion,  necessarily  in  tlie  coun- 
cil, in  this  regard.  The  implication  of  law,  however,  is,  that  the  time 
fixed  should  be  within  a  reasonable  period,  in  view  of  all  the  cir- 
cumstances. Precisely  what  would  be  a  reasonable  period,  might 
in  many  instances,  ])e  of  extremely  difiicult  solution;  instances  of 
what  would  be  an  unreasonable  period,  can  more  readily  be  imag- 
ined, which  will  serve  the  present  purpose  of  illustration.  Had  the 
election  been  postponed  for  ten  years,  or  even  five  years,  it  would 
need  no  argument  to  show  that  it  would  amount,  practically  to  a  de- 
nial of  the  right  guaranteed  to  the  petitioners.  No  one  would  pre- 
tend the  discretion  vested  in  the  council  would  justify  this.  So  it 
would  seem  to  be  equally  clear,  that  any  postponement,  not  author- 
ized by  some  apparent  public  necessity,  would  be  unjustifiable.  _The 
di.scrction  vested  in  the  council  cannot  be  exercised  arbitrarily,  for 
the  gratification  of  feelings  of  malevolence,  or  for  the  attainment  of 
mere  ])crsf>nal  and  selfish  ends.  //  niiist  be  exercised  for  the  public 
^uod,  and  should  he  controlled  by  jiidi^nicnt,  and  not  by  passion  or 
prejudice.  When  a  discretion  is  abused,  and  made  to  wozkJjUutsice, 
it  is  admissible  that  it  shall  be  controUcd  by  manddmus.     TappTri'g 

Mand.  (Am.  Ed.)  66: 

'I"hc  change  desired  to  be  cfTocled  in  the  niiniici]inl  government  of 


§    3  TO    PUBLIC    OFFICERS.  IIJ 

the  village,  through  an  election,  was  such  as  materially  affected 
every  citizen  and  taxpayer  of  the  village.  The  petition  was  based 
on  what  were  supposed  sufficient  reasons,  having  reference  to  the 
then  existing  state  of  affairs.  If  reform  to  be  brought  about  through 
this  means,  was  needed,  and  desired  by  a  majority  of  the  voters  of 
the  village,  it  was  a  wrong  and  an  outrage  that  they  should  be  com- 
pelled to  submit  to  the  evils  that  they  labored  under,  for  another 
year,  when  the  change  might  reasonably  be  effected  in  a  month.  If 
there  were  leeches  on  the  treasury, — a  vicious  revenue  system,  and 
imperfect  police  regulations, — in  the  opinion  of  a  majoritv  of  the 
voters,  to  be  gotten  rid  of  only  through  a  change  in  the  organic  law, 
they  were  entitled  to  have  the  change  made  as  soon  as  it  was  prac- 
ticable, and  every  day  they  were  forced  to  submit  to  the  continuance 
of  the  evils  beyond  that  period,  was  so  much  arbitrary  oppression  by 
the  council. 

\Ve  can  jmagine  no  public  necessil_\-  justifying  the  postponement 
of  the  election  from  the  i6th  of  July,  1874,  until  the  first  Tuesday 
"of  l\pril,  1875.  It  has  every  appearance  of  an  attempt  on  the  part 
oFthose  filling  the  council,  to  perpetuate  their  own  power  to  the  ut- 
most possible  period,  notwithstanding  and  in  defiance  of  the  wishes 
of  the  people.  It  is  not  admissible  that  this  conduct  shall  be  excused 
by  the  respondent  assuming  that  a  majority  of  the  electors  did  not 
concur  with  the  thirty  petitioners,  and  therefore  the  election  would 
have  involved  the  village  in  useless  expense.  That  was  the  question 
to  be  settled  by  the  election,  and  it  could  in  no  other  way  be  settled. 
The  law  gave  the  thirty  electors  the  right  to  have  the  election,  and  to- 
have  it  within  a  reasonable  time,  and  its  unnecessary  postponement 
was  in  violation  of  that  right. 

The  allegation  of  the  petition,  moreover,  that  this  postponement 
was  to  defeat  the  will  of  the  electors,  is,  by  the  default  to  be  taken 
as  true.  Thus,  it  is  conceded  the  discretion  of  the  council  is  abused. 
and  perverted  to  the  attainment  of  an  unjustifiable  end. 

If  this  postponement  may  be  excused,  it  must  follow,  the  council 
may,  in  the  exercise  of  its  discretion,  indefinitely  postpone  the  call- 
ing of  the  election  between  which,  and  an  absolute  refusal  to  call  the 
election,  the  distinction  is  only  in  form,  and  not  in  substance. 

We  have  no  hesitancy  in  saying  the  case  is  one  in  which  man- 
damus  pro^eri^iies. 

The  "only  remammg  objection  is,  that  the  prosecution  is  carried  on 
by  a  private  citizen,  and  not  by  a  public  prosecutor. 

The  relator  shows  that  he  is  a  resident,  voter  and  taxpayer  of  the 
village. 

It  was  said,  in  the  County  of  Pike  v.  State,  1 1  111.  207,  "The  ques- 
tion, who  shall  be  the  relator  in  an  application  for  a  mandamus,  de- 
pends upon  the  object  to  be  attained  by  the  writ.  Where  the  object 
is  the  enforcement  of  a  public  right,  the  people  are  regarded  as  the 


Il8  STATE  V.   RICE.  §    3 

real  party,  and  the  relator  need  not  show  that  he  has  any  legal  inter- 
est in  the  result.  It  is  enough  that  he  is  interested  as  a  citizen,  in 
having  the  laws  executed,  and  the  right  in  question  enforced."  See 
also,  City  of  Ottawa  v.  People,  48  111.  235 ;  Hall  v.  People,  57  id. 
310. 

These  cases  hold  a  different  rule  from  that  announced  by  the  cases 
referred  to  by  the  respondent,  but  are  conclusive  here. 

The  public  prosecutor  might,  undoubtedly,  have  instituted  this 
prosecution,  but  his  failure  to  do  so  is  no  reason  why  the  citizens, 
taxpayers  and  voters  of  the  village  shall  be  denied  the  right  to  have 
the  council  do  its  duty. 

The  remarks  in  People  v.  Supervisors,  47  111.  259,  referred  to  by 
the  counsel  for  the  respondent,  are  not  pertinent.  They  have  refer- 
ence simply  to  a  contract,  in  which  the  contracting  party  was  asking 
no  aid  of  the  court,  and  had  no  allusion  to  the  case  of  a  failure  to 
perform  a  public  duty. 

We  are  of  the  opinion  that  there  is  no  error  in  the  record,  and  the 
judgment  therefore  must  be  affirmed. 

Judgment  affirmed. 


STATE  EX  REL.  SCHOOL  DISTRICT  14  v.  RICE.  STATE 
SUP'T  OF  ED. 

1890.     Supreme  Court  of  South  Carolina.     32  S.  Car.  97, 
10  S.  E.  833. 

McGowAN,  J.  This  is  a  petition  in  the  original  jurisdiction  of 
this  court  for  a  mandamus  compelling  the  respondent,  James  H. 
Rice,  state  superintendent  of  schools,  "to  make  and  promulgate 
such  regulation  prescribing  the  method  of  apportioning  the  income 
of  the  school  tax,  among  the  various  school  districts  in  each  county 
as  shall  be  in  conformity  with  the  laws  and  constitution  of  the  state 
regulating  the  subject,"  etc.  The  act  of  1881  (p.  610),  "To  prescribe 
the  mode  of  ascertaining  the  average  attendance  of  the  free  public 
schrK)ls  of  the  state,  and  to  apportion  the  school  fund  according  to 
such  attendance,"  now  embo(licd  in  section  105 1  of  the  general 
statutes,  provides  as  follows :  "The  school  month  shall  consist  of  20 
school  days,  and  that  this  number  shall  be  taken  as  the  unit  of  com- 
pensation I  computation  I  in  estimating  the  average  attendance  of 
each  pupil  in  the  free  schools  of  this  state.  For  the  school  year 
18K2-H3,  anfl  for  each  school  year  thereafter,  each  county  school 
commissioner  shall  apportion  the  income  of  the  school  fund  among 
the  several  school  districts  of  his  county  in  proportion  to  the  average 
attendance  on  tiic  free  public  schools  for  tin-  last  preceding  year,  as 


^    3  TO    PUBLIC    OFFICERS.  1  I9 

ascertained  by  section  i  of  this  act.  The  state  superintendent  is 
hereby  authorized  and  required  to  prescribe  such  regulation  as  may 
be  necessary  to  enforce  tlie'pTovlsions  of  this  act,"  etc.  Superin-__ 
Tenddht  Rice,  for  the  purpose  of  carrying  out  and  enforcing  the  pro- 
\-isions  of  the  above  law,  made  and  published  the  following  regular 
tions:^"Rule  i.  To  find  the  average  attendance  of  one  school  for  one 
school  month,  add  the  number  of  pupils  for  each  day  and  divide  the 
sum  by  twenty.  Rule  2.  To  find  the  average  attendance  of  one 
school  for  one  school  year,  add  the  average  as  found  by  rule  one, 
and  divide  the  sum  by  the  number  of  school  months  that  the  school 
has  been  in  session.  Rule  3.  To  find  the  average  attendance  of  a 
school  district  for  one  school  year,  add  the  averages  as  found  by 
rule  two.  Rule  4.  To  find  the  average  in  a  county  for  a  school 
year,  add  the  averages  as  found  by  rule  three.  Rule  5.  To  apportion 
the  school  fund,  divide  the  proceeds  of  the  school  tax  by  the  average 
attendance  of  a  county,  as  found  by  rule  four,  and  multiply  the  quo- 
tient by  the  average  attendance  of  the  several  school  districts.  The 
products  thus  obtained  will  be  the  sums  to  which  the  respective  dis- 
tricts will  be  entitled."  These  rules  are  certainly  condensed  and 
pregnant,  but  the  petitioners  allege  that  they  "do  not  comport  with 
the  laws  and  constitution  in  this,  that  they  prescribe  as  a  school 
year  the  number  of  school  months  each  school  has  been  in  session, 
thus  creating  a  different  school  year  for  each  separate  school ;  where- 
as the  relators  insist  that  under  the  constitution  of  this  state  the 
school  year  in  any  school  district  consists  of  the  period  during  which 
tfte  school  longest  in  session  in  said  school  district  is  in  session ;  and, 
provided  in  no  event  can  the  school  year  be  less  than  six  months." 
The  f^lators  submit  that  the  regulations  should  be  made  to  conform 
to  the  constitution  and  laws,  by  adding  a  regulation  that  a  school 
year  in  each  school  district  shall  consist  of  the  period  which  the 
longest  in  session  in  such  district  shall  be  in  session,  but  that  in  no 
event  shall  a  school  year  be  less  than  six  months ;  and  by  striking  out 
the  words  "that  the  school  has  been  in  session"  at  the  end  of  rule 
two,  and  by  substituting  for  them  the  words,  "in  the  school  year." 
.  If  the  superintendent  of  education  had  omitted  or  refused  to  make 
the  regulations  required  by  the  act,  he  might  have  been  put  in  mo- 
tion by  mandamus,  and  required  to  make  the  regulations  as  he  w^as 
expressly  required  to  do.  But  we  think  the  duty  imposed  upon  him 
required  discretion,  and  a  high  degree  of  judgment,  and  not  being  a 
plain  ministerial  duty,  but  judicial  or  quasi-judicial  in  its  character, 
and  having  already  performed  the  duty  assigned  him  to  the  best  of 
his  judgment,  we  think  mandamus  will  not  lie  against  him.  As  w'e 
said  in  Ex  parte  Mackey,  15  S.  C.  330 :  "A  writ  of  mandamus  is  the 
highest  judicial  writ  known  to  the  constitution  and  the  laws,  and, 
according  to  the  long  approved  and  well  established  authorities, 
only  issues  in  cases  wdiere  there  is  a  specific  legal  right  to  be  en- 


120  STATE  V.   RICE.  §    3 

forced,  or  where  there  is  a  positive  duty  to  be  performed,  which 
can  be  performed,  and  where  there  is  no  other  specific  remedy. 
Where  the  legal  right  is  doubtful,  or  where  the  performance  of  the 
duty  lies  in  discretion,  or  where  there  is  another  adequate  remedy, 
a  writ  of  mandamus  cannot  rightfully  issue."  See  High  Extr.  Rem. 
§  9;  Ex  parte  Lynch,  i6  S.  Car.  2)^;  Richland  Co.  v.  Miller,  id.  236; 
Mining  Co.  v.  Haygood,  30  S.  Car.  519,  9  S.  E.  686.  But  if  this 
court  could  by  mandamus  correct  "an  error"  of  the  superintendent 
of  education  in  prescribing  such  rules  as  he  considered  necessary  to 
enforce  the  law,  it  is  far  from  clear  that  there  was  any  "error." 
There  can  be  no  doubt  that  the  act  of  the  legislature,  in  accordance 
with  the  express  terms  of  the  "two  mills"  constitutional  amendment, 
directs  that  the  proceeds  of  that  tax  "shall  be  distributed  among  the 
several  school  districts  in  proportion  to  the  respective  number  of 
pupils  attending  the  public  schools."  That  number  could  not  in  ad- 
vance be  ascertained  with  absolute  certainty,  by  actual  count.  The 
only  course  then  left  was  to  approximate  the  number,  by  taking  the 
average  attendance  in  the  previous  year,  which  was  adopted  by  the 
act,  with  instructions  to  the  superintendent  of  education  "to  pre- 
scribe such  regulations  as  may  be  necessary  to  enforce  the  law." 
This  he  endeavored  to  do  by  the  several  short  condensed  rules  be- 
fore stated.  As  we  understand  it  there  is  no  objection  to  rule  4, 
which  prescribes  the  mode  of  ascertaining  the  average  attendance, 
the  year  previous,  for  a  county,  nor  to  rule  3,  to  ascertain  the  aver- 
age attendance  for  a  school  district.  But  the  complaint  is  made  that 
rule  2  operates  unfairly  between  the  different  schools  of  the  same 
school  district,  in  this,  that  the  average  in  those  which  are  kept  open 
the  longest  period  in  a  year  is  reduced,  thus  giving  them  less  of  the 
school  fund,  when  in  justice  they  should  have  more.  Does  it  follow 
that  the  average  of  a  long  term  should  be  less  than  that  of  a  short 
term?  May  not  the  same  number  of  pupils  attend  during  the  long 
term  ?  Possibly  from  the  ordinary  accidents,  misfortunes  and  dis- 
ap])ointments,  the  chances  of  falling  off  in  a  long  term  may  be 
greater  than  in  a  short  term.  That  however,  would  seem  to  be  too 
uncertain  and  conjectural  to  enter  as  an  element  into  the  formation 
of  fixed  rules.  Besides  the  act  of  the  legislature  positively  directs 
that  the  school  fund  shall  be  distributed  in  proportion  to  the  aver- 
age attendance  upon  the  schools  for  the  last  preceding  year.  Tt  will 
he  ol)S(Tved  that  wliile  the  legislature  fixed  the  public  school  month, 
it  did  not  fix  the  public  school  year,  and  it  is  stated  that  in  conse- 
f|iiencc  the  schools  are  kept  open  for  different  periods.  It  does  not 
scorn  to  us  that  the  superintendent  is  in  anv  way  responsible  for  this, 
or  that  he  had  the  i)ower  to  supi)ly  the  defioi(Micv.  Until  the  proper 
l.'iwmaking  body  sees  fit  to  fix  the  period  of  the  public  school  vear. 
it  is  not  clearly  jjcrceived  what  basis  the  superintendent  could  take 
in  reaching  the  average  attendance  for  the  year  previous,  other  than 


§    3  'i"0    I'UBLIC    Ol-l'lCERS.  121 

"the  months  the  school  was  in  session,"  whether  that  was  three,  six, 
or  nine  months. 

Some  stress  seems  to  be  laid  on  ^  3,  art.  10,  of  the  constitution, 
which  declares  that  "the  general  assembly  shall,  as  soon  as  prac- 
ticable, after  the  adoption  of  this  constitution,  provide  for  a  liberal 
and  uniform  system  of  free  public  schools,  throughout  the  state. 
There  shall  be  kept  open  at  least  six  months  in  each  year,  one  or 
more  schools  in  each  school  district,"  etc.  But  in  1878  the  constitu- 
tion itself  was  amended  by  the  adoption  of  the  two  mills  school  tax, 
which  carefully  divides  the  mode  of  distributing  the  funds  to  be 
raised  under  it,  but  makes  no  reference  whatever  to  keeping  open 
in  each  school  district  one  or  more  schools  for  at  least  six  months 
in  each  year.  The  fact  is  that  this  provision  in  the  constitution  of 
1867  requiring  school  to  "be  kept  open  for  at  least  six  months  in 
each  year,"  like  that  other  provision,  that  the  school  should  be  "free 
and  open  to  all,"  with  compulsory  attendance,  was  only  intended  to 
go  into  operation  as  a  part  of  the  general  system,  with  the  estab- 
lishment of  which  the  general  assembly  was  charged.  We  very 
much  doubt  whether  that  provision  has  any  proper  application  to  the 
school  fund  arising  under  the  two  mills  constitutional  amendment, 
for  several  reasons,  and  especially  for  the  very  conclusive  one  that, 
as  we  are  informed,  the  fund  arising  under  the  amendment  is  not 
sufficient  to  support  the  public  schools  for  more  than  three,  or  at 
most  four,  months  in  the  year.  The  judgment  Qf  the  court  is  that 
the  petition  for  a  writ  of  mandaj}uis  be  refused. 

Simpson,  C.  ].,  and  McIver^  concur. 

See  also  Bailey  v.  Ewart,  52  Iowa,  in;  State  v.  Palmer,  18  Neb.  644, 
26  N.  W.  469- 

In  all  cases  the  duty  of  the  officer  must  be  clear.  Peckett  v.  White,  22 
Tex.  559;  State  v.  Lincoln  County,  35  Neb.  346,  53  N.  W.  147;  Daniels 
V.  Long,  III   Mich.  562,  69  N.  W.   1112;  Cook  v.  Candee,  52  Ala.  109. 

Writ  will  not  be  granted  in  anticipation  of  a  defect  of  duty.  Commis- 
sioners V.  Alleghany,  20  Md.  449. 


2.     Mandamus  to  the  President  of  the  United  States. 

Marbury  v.  Madison,  i  Cranch  (U.  S.)  137  (1803),  and  Kendal! 
V.  United  States,  12  Pet.  (U.  S.)  524  (1838),  early  decided  that  the 
gowers  of  the  President  are  purely  political  and  that  he  is  therefore 
beyond  the  reach  of  any  legal  control  save  by  impeachment.  Man- 
damus has  never  been  sought  for  against  the  President. 


122  UNITED   STATES   V.    BAYARU.  §    3 

3.     To  Other  executive  officers  of  the  Federal  Government. 

UNITED  STATES  ex  rel.  WHITE  v.  BAYARD. 

1887.     Supreme  Court  of  the  District  of  Columbia. 
16  D.  C.  428;  17  Am.  &  Eng.  Corp.  Cas.  485. 

Hagner,  J.  The  petitioner  asks  that  a  mandamus  may  issue  di- 
recting ]\Ir.  Bayard,  the  secretary  of  ^tate,  to  pay  over  to  him  a  sum 
of  money  which  he  alleges  he  is  entitled  to  receive  as  assignee  of 
certain  claims  adjudicated  and  allowed  under  the  joint  Mexican  and 
American  Commission. 

I.  The  principal  defense  made  to  this  application  by  the  secretary 
is  one  which,  if  allowed,  would  not  only  be  decisive  of  this  case,  but 
would  be  fatal  to  any  claim  of  authority  in  this  court  hereafter  to 
issue  a  mandamus  against  the  secretary  of  state  in  his  official  ca- 
pacity in  any  manner  whatever,  without  regard  to  the  question 
whether  the  duty  sought  to  be  enforced  is  purely  ministerial,  or  one 
discretionary  in  its  nature.  The  secretary  presents  this  defense  in 
the  following  language: 

"And  this  respondent  further  answering,  saith  that  the  several 
sums  of  money  mentioned  in  the  said  petition,  and  claimed  to  be  due 
and  payable  to  the  relator,  are  held  by  him  subject  to  the  order  and 
control  of  the  President  of  the  United  States,  and  are  disposable  by 
this  respondent  at  the  descretion  of  the  President  only ;  and  that,  as 
this  respondent  is  advised  and  believes,  there  is  no  law,  as  hath  been 
mistakenly  supposed,  by  the  said  relator,  by  which  this  respondent 
is  invested  with  authority  over  the  said  sums  of  money  independent 
of  the  President  of  the  United  States ;  and  it  being  the  opinion  of 
the  President  that  the  public  interests  forbid  the  making  of  pay- 
ments to  the  said  relator,  in  the  present  condition  of  things  as  herein 
before  set  forth,  this  respondent  submits  that  he  is  not  subject  to 
the  process  of  mandamus  in  the  premises ;  and  that  he  therefore 
prays  that  he  may  1)e  discharged  from  the  said  rule,  with  proper  costs 
in  his  behalf  sustained." 

I'.ut  for  the  earnestness  with  which  this  defense  has  been  urged  by 
ihc  assistant  attorney  general  in  ])ehalf  of  one  of  the  highest  officers 
in  the  government,  and  especially  of  his  further  contention  that  his 
position  is  supported  by  a  decision  of  this  court  recently  rendered  in 
a  case  in  which  the  same  official  was  a  defendant,  we  should  have 
contented  ourselves  with  a  simple  reference  to  the  decision  of  the 
Supreme  Court  of  the  Ignited  States,  announced  eighty-four  years 
ago,  in  the  case  of  Marbury  v.  Madison,  i  Cranch  (U.  S.)  163,  as  a 
sufficient  refutation  of  the  contention. 

P.iit.  under  the  conditions  to  which  I  have  adverted,  it  is  perhaps 
proper  and  resixTtfnl  that  something  more  should  be  said  to  show 


§    3  '^O    PUBLIC    OFFICERS.  1 23 

that  we  have  no  alternative  but  to  adhere  to  the  position  which  we 
conceive  has  been  thus  so  long  settled. 

The  facts  of  that  case,  which  is  as  familiar  to  the  bar  as  any  in  the 
whole  range  of  jurisprudence,  were  these :  Shortly  before  Mr. 
Adams  retired  from  the  ofifice  of  President  he  had  signed  a  number 
of  commissions  as  justice  of  the  peace  within  this  District,' some  of 
\vhich  had  not  been  received  by  the  person  for  whom  they  were  in- 
tended ;  but  after  Mr.  Jefferson  was  inaugurated,  they  were  found 
by  Mr.  Madison  in  the  office  of  the  secretary  of  state.  The  Presi- 
dent ordered  the  secretary  not  to  surrender  them,  and  thereupon 
Mafbury,  whose  commission  was  withheld  under  this  order,  filed  a 
petition  for  a  mandamus  in  the  Supreme  Court  of  the  United  States. 
alleging  his  demand  and  the  refusal  of  the  secretary  under  the  Presi- 
dent's orders  to  perform  what  he  averred  to  be  a  mere  ministerial 
dtity,  and  insisted  that  he  had  a  right  to  have  its  performance  en- 
forced by  a  mandamus  from  that  court. 

The  case  was  elaborately  argued  and  considered  in  all  its  relations, 
and  the  writ  was  refused  upon  the  ground  that  the  Supreme  Court 
possessed  no  original  jurisdiction  in  the  case.  But  the  court  entered 
upon  an  elaborate  discussion  of  all  the  other  points  raised,  and 
(among  others)  of  this  very  question,  whether  in  the  case  of  a  plain 
ministerial  duty  the  secretary  of  state  was  amenable  to  the  process  of 
maiidamus ;  and  they  decided  unequivocalh'  that  he  was. 

I  shall  read  a  few  sentences  from  the  opinion,  for  the  reasons  I 
have  st.ated. 

Much  stress  has  been  laid,  in  the  argument,  in  that  case  upon  the 
])eculiar  language  of  the  section  of  the  act  of  1789  establishing  the 
Department  of  State,  which,  as  was  also  urged  in  the  argument  be- 
fore us,  committed  no  authority  to  the  secretary  of  state,  except  in 
subordination  to  the  orders  of  the  President. 

The  Chief  Justice,  in  reply  to  this  argument  says,  "By  the  consti- 
tution of  the  United  States,  the  President  is  invested  with  certain 
political  powers,  in  the  exercise  of  which  he  is  to  use  his  own  dis- 
cretion, and  is  accountable  only  to  his  country  in  his  political  char- 
acter, and  his  conscience.  To  aid  him  in  the  performance  of  these 
duties,  he  is  authorized  to  appoint  certain  officers,  who  act  by  his 
authority,  and  in  conformity  with  his  orders. 

'Tn  such  cases  their  acts  are  his  acts;  and  whatever  opinion  may 
be  entertained  of  the  manner  in  which  executive  discretion  may  be 
used,  still  there  exists,  and  can  exist,  no  power  to  control  that  dis- 
cretion. The  subjects  are  political.  They  respect  the  nation,  not 
individual  rights,  and  being  intrusted  to  the  Executive,  the  decision 
of  the  Executive  is  conclusive.  The  application  of  this  remark  will 
be  perceived  by  adverting  to  the  act  of  congress  for  establishing  the 
Department  of  Foreign  Affairs.  This  officer,  as  his  duties  were  es- 
tablished by  that  act,  is  to  conform  precisely  to  the  will  of  the  Presv- 


124  UNITED   STATES  V,    BAYARD.  §    3 

dent.  He  is  the  mere  organ  by  whom  that  will  is  communicated. 
The  acts  of  such  an  officer,  as  an  officer,  can  never  be  examinable  by 
the  courts. 

"But  when  the  legislature  proceeds  to  impose  on  that  officer  other 
duties ;  when  he  is  directed  peremptorily  to  perform  certain  duties ; 
when  the  rights  of  individuals  are  dependent  on  the  performance  of 
those  acts,  he  is  so  far  the  officer  of  the  law, — is  amenable  to  the 
laws  for  his  conduct,  and  cannot  at  his  discretion  sport  away  the 
rights  of  others. 

"The  conclusion  from  this  reasoning  is,  that  where  the  heads  of 
departments  are  the  political  or  confidential  agents  of  the  Executive, 
merelv  to  execute  the  will  of  the  President,  or  rather  to  act  in  cases 
in  which  the  Executive  possesses  a  constitutional  or  legal  discre- 
tion, nothing  can  be  more  perfectly  clear  than  that  their  acts  are  only 
politically  examinable.  But  where  a  specific  duty  is  assigned  by  law, 
and  individual  rights  depend  upon  the  performance  of  that  duty,  it 
seems  equally  clear  that  the  individual  who  considers  himself  injured 
fras  a  right  to  resort  to  the  laws  of  his  country  for  a  remedy." 

And  again:  "But,  if  this  *  ''■'  '■''  be  no  intermeddling  with  a 
subject  over  which  the  Executive  can  be  considered  as  having  exer- 
cised any  control,  what  is  there  in  the  exalted  station  of  the  officer, 
which  shall  bar  a  citizen  from  asserting,  in  a  court  of  justice,  his 
legal  rights,  or  shall  forbid  a  court  from  listening  to  the  claim,  or 
to  issue  a  mandamus  directing  the  performance  of  a  duty,  not  de- 
pending on  executive  discretion,  but  on  particular  acts  of  congress, 
and  the  general  principles  of  law?''  170. 

"If  one  of  the  heads  of  departments  commits  any  illegal  act  under 
color  of  his  office,  by  which  an  individual  sustains  an  injury,  it  can- 
not be  pretended  that  his  office  alone  exempts  him  from  being  sued 
in  the  ordinar}-  modes  of  i)roccedings,  and  being  compelled  to  obey 
the  judgment  of  the  law.  How  then,  can  his  office  exem])t  him  from 
this  particular  mode  of  deciding  on  the  legality  of  his  conduct,  if  the 
case  be  such  as  would,  were  any  other  individual  the  party  com- 
plained of,  authorize  the  process?  It  is  not  by  the  office  of  the  per- 
son to  whom  the  writ  is  directed,  but  the  nature  of  the  thing  to  be 
done,  that  the  propriety  or  impropriety  of  issuing  a  mandainus  is  to 
he  deternii)ied.  VV4icrc  the  head  of  a  department  *  *  *  is  directed 
by  law  to  do  a  certain  thing  affecting  the  absolute  rights  of  individ- 
uals, in  the  performance  of  which  he  is  not  ])laced  under  the  particu- 
lar direction  of  the  President,  and  the  performance  of  which  the 
T'rcsirlcnt  cannot  lawfully  forbid,  and  therefore  is  never  presumed  to 
have  forbidden  ;  *  *  ^:  i,-,  such  cases,  it  is  not  perceived  on  wliat 
grounds  the  courts  of  the  country  are  further  excused  from  the  duty 
of  giving  judgment  that  right  be  done  to  an  injured  individual,  than 
if  the  same  services  were  to  be  performed  by  a  ])crson  not  flTe~liead 
of  a  department." 


§    3  'l'<^    ['UULIC    OFFICERS.  I25 

The  language  of  the  statute  creating  others  of  the  executive  de- 
partments, and  apparently  subordinating  their  actions  to  the  will  of 
the  President,  does  not  differ  substantially  from  that  used  with  re- 
spect to  the  Department  of  State.  Such  is  the  case  with  reference 
to  the  Department  of  War,  of  the  Navy,  and  of  the  Treasury ;  but 
the  writ  has  repeatedly  been  issued  from  this  court  against  those  of- 
ficials, in  matters  ministerial,  without  a  word  from  the  Supreme 
Court,  in  disapproval  of  a  jurisdiction,  which  since  the  case  of  Ken- 
dall V.  United  States,  12  Pet.  (U.  S.)  6io,  has  been  recognized  as 
one  of  the  flowers  of  our  court.  In  the  latter  case,  Mr.  Justice 
Thompson,  speaking  for  the  Supreme  Court  says :  "There  are  cer- 
tain political  duties  imposed  upon  many  officers  in  the  Executive 
Department,  the  discharge  of  which  is  under  the  direction  of  the 
President.  But  it  would  be  an  alarming  doctrine,  that  Congress  can- 
not impose  upon  any  executive  officer  any  duty  they  may  think 
proper,  w^hich  is  not  repugnant  to  any  rights  secured  and  protected  by 
the  constitution ;  and  in  i-uch  cases  the  duty  and  responsibility  grow 
out  of,  and  are  subject  to  the  control  of  the  law,  and  not  to  the  direc- 
tion of  the  President." 

In  that  case  the  granting  of  the  writ  had  been  resisted  upon  the 
ground  of  want  of  authority  in  the  courts  of  the  District,  but  not  be- 
cause of  any  distrust  in  the  soundness  of  the  general  principles  an- 
nounced in  Marbury  v.  Madison  ;  and  it  may  not  be  out  of  place  to 
quote  the  following  from  a  report  of  the  argument  of  Mr.  Attorney 
General  Butler  in  that  case,  as  evincing  the  understanding  of  a  dis- 
tinguished lawyer  of  that  decision. 

"And  as  the  ordinary  character  of  an  officer's  functions  would  not 
always  determine  the  true  nature  of  a  particular  duty  imposed  by 
law,  he  further  agreed,  that  if  an  executive  officer,  the  head  of  a  de- 
partment, or  even  the  President  himself,  were  required  by  law  to 
perform  an  act  merely  ministerial,  and  necessary  to  the  completion 
and  enjoyment  of  the  rights  of  individuals,  he  should  be  regarded 
quoad  hoc,  not  as  an  executive,  but  as  a  merely  ministerial  officer; 
and  therefore  liable  to  be  directed  and  compelled  to  the  performance 
of  the  act  by  mandamus  if  Congress  saw  fit  to  give  the  jurisdiction." 
12  Pet.  (U.  S.)  596. 

Since  1803,  the  decision  has  stood  undisturbed,  as  settled  law.  It 
is  true  that  it  has  been  criticised  upon  the  ground  that  the  court  had 
declared  itself  without  jurisdiction  to  issue  the  writ ;  and  this  was 
one  of  the  reasons  given  by  Mr.  Jefferson  in  his  letter  of  June  2, 
1807,  to  Geo.  Hay,  the  prosecuting  attorney  in  the  trial  of  Burr, 
A\hy  he  thought  "it  material  to  stop  at  the  threshold,  the  citing  of 
that  case  as  authority,  and  to  have  it  denied  to  be  law^" 

But  in  United  States  v.  Schurz,  102  U.  S.  395.  the  Supreme  Court, 
in  awarding  a  mandamus  against  the  secretary  of  the  interior  to  de- 
liver a  land  patent  to  the  patentee,  notices  this  suggestion  in  these 


126  UNITED   STATES  V.    BAYARD.  §    3 

words:  "If  the  relator  was  entitled  to  the  possession  of  the  patent 
as  his  property,  and  it  was  the  plain  duty  of  the  secretary  to  deliver 
it  to  him  when  demanded,  then,  under  all  the  authorities,  and  espe- 
cially the  decisions  of  this  court,  he  is  entitled  to. the  remedy  he  asks. 
From  the  case  of  Alarbury  v.  Madison,  i  Cranch  (U.  S.)  163,  down 
to  the  present  time  such  has  been  the  settled  doctrine  of  this  court. 
And  though  it  may  be  said  that  the  opinion  of  Chief  Justice  Marshall 
in  that  case  was  not  necessary  to  the  decision  made,  which  was  tjiat 
this  court  had  no  original  jurisdiction  in  that  case,  the  principles  of 
the  case  have  been  repeatedly  recognized  and  acted  upon  by  this 
court,  and  the  case  cited  with  approval  in  its  definition  of  the  circum- 
stances under  which  a  person  holding  public  offices  will  be  com- 
pelled to  perform  certain  duties  which  are  merely  ministerial.  Ken- 
dall v.  United  States,  12  Pet.  (U.  S.)  524;  Decatur  v.  Paulding,  14 
Pet.  (U.  S.)  497- 

The  decision  has  been  equally  followed  by  the  courts  of  the  dif- 
ferent states,  even  where  the  proceedings  were  against  the  highest 
state  officials,  to  compel  the  performance  of  ministerial  duties.  In 
Magruder  v.  Swann,  25  Md.  173,  where  the  writ  was  ordered  against 
the  Governor,  the  whole  subject  was  reviewed,  and  the  more  promi- 
nent state  decisions  are  cited. 

It  would  therefore  have  been  impossible  for  this  court  to  have 
held  a  contrary  doctrine ;  and  whatever  language  was  used  in  the 
case  of  United  States  ex  rel.  Angarica  de  la  Rua  v.  Bayard,  4 
Mackey  (D.  C.)  310,  referred 'to  by  the  defendant,  must  be  under- 
stood as  relating  solely  to  the  facts  of  that  case. 

It  is  well  understood  that  no  mandamus  can  be  issued  against  a 
public  officer,  unless  the  party  applying  shows  a  clear  legal  right 
to  the  relief  claimed ;  and  also  that  there  exists  a  clear  legal  duty  on 
the  part  of  the  official  to  perform  the  ministerial  function  involved. 

In  the  case  in  4  Mackey  (D.  C.)  310,  neither  of  these  essential 
prerequisites  of  jurisdiction  appeared.  Under  a  convention  between 
the  United  States  and  Spain,  a  large  sum  had  been  awarded  to  An- 
garica de  la  Rua  for  losses  sustained  by  him  at  the  hands  of  the  au- 
thorities in  Cuba,  which  was  paid  over  by  Spain  to  the  secretary  of 
state.  This  officer  paid  over  to  the  claimant  the  amount  so  received, 
except  about  $41,000,  which  he  retained  until  the  Spanish  Govern- 
ment should  make  provisions  to  pay  the  expenses  of  the  arbitration. 
Several  years  afterwards  the  secretary  paid  over  the  sum  so  re- 
tained in  full,  but  refused  to  pay  to  the  claimant  the  amount  of  in- 
terest which  had  been  realized  from  the  investment  of  the  sum, 
made  by  the  secretary's  order  while  awaiting  the  action  of  the  Span- 
ish CJovcrnment.  To  com])el  the  payment  of  this  interest  the  man- 
damus was  apj)lied  for;  but  it  was  refused  by  this  court,  as  it  aj)- 
\K':irc(\  that  the  retention  of  the  $41,000  by  the  secretary,  and  its  in- 
vestment, and  the  earnings  of  interest  on  the  sum,  were  all  equally 


§    3  TO    PUBLIC    OFFICERS.  12/ 

without  law,  but  were  mefe  voluntary  acts  of  the  secretar}  ;  that 
the  unchangeable  practice  of  the  government  is  not  to  pay  interest 
upon  claims,  and  that  there  could  be  no  element  of  contract  in  the 
transaction ;  and  hence,  however  equitable  might  be  the  petitioner's 
claim  to  the  interest,  it  could  not  be  enforced  at  law. 

Has  this  claimant  any  other  reasonable  or  attainable  remedy  ? 
Plainly  not.  This  is  his  only  mode_of  obtaining  his  money,  and  if  re- 
lief is  denied  him  her^  he  would  be  indeed  remediless  in  the  premises, 
-cmdlhat  deplorable  result  would  ensue  which  Chief  Justice  Marshall 
in  Marbury  v.  Madison  declared  would  expose  to  obloquy  our  sys- 
tem of  jurisprudence — that  a  stT!torvnth_3jilaijl--d^ 
should  be  powerless  to  obtam  it  from  the  courts,  because  his  rights 
are  withheld  by  a^^poWgfful  oflScer  of  the  government  created  for  his 

protection.  ~" 

""We^think  that  it  is  our  duty  to  direct  that  a  peremptory  mandamus 
shall  issue,  as  prayed ;  and,  it  is  so  ordered. 

See  also  Carrick  v.  Lamar,  ii6  U.  S.  423,  6  Sup.  Ct.  24;  Decatur  v. 
Paulding,  14  Pet.  (U.  S.)  499;  United  States  v.  Guthrie.  17  How.  ( U.  S.) 
284;  United  States  v.  Commissioners,  S  Wall.  (U.  S.)  563;  Kendall  v. 
United  States,  12  Pet.  (U.  S.)  524;  Marbury  v.  Madison,  i  Cranch  (U. 
S.)  137;  United  States  v.  Schurz,  102  U.  S.  378;  Secretary  v.  McGarra- 
han,  9  Wall.  (U.  S.)  298;  United  States  v.  Windom,  137  U.  S.  637,  11 
Sup.  Ct.  192;  United  States  v.  Blaine,  139  U.  S.  306,  11  Sup.  Ct.  607; 
United  States  v.  Lamont,  155  U.  S.  303,  15  Sup.  Ct.  97;  United  States  v. 
Boutwell,  3  McArthur   (U.  S.)    172. 


4.     To  the  Governor  of  the  State. 
PEOPLE  EX  REL.  SUTHERLAND  et  al.  v.  THE  GOVERNOR. 
1874.     Supreme  Court  of  Michigan.     29  Mich.  320. 

CooLEY,  J.  This  is  an-aptplicatioD  for  an  order  requiring  the  govj 
ernor  to  show  cause  why  he  does  not  issue  his  certificate  showing^ 
that  the  Portage  Lake  and  Xake  Superior  ship  canal  and  harbor 
haVe  been  constructed  in  conformity  with  the  acts  of  Congress  mak- 
ing a  land  grant  for  the  same,  and  the  acts  of  the  Legislature  of  this 
State,  conferring  the  grant  upon  a  corporation,  which  the  relators 
now  claim  to  represent. 

When_the  application  was  first  presented  to  us  we  declined  to 
make  the  usual'^.r  /'or/cv  order  until  the  question  of  our  jurisdiction 
m  the  premises  should  have  been  argued,  and  this  having  now  been 
9nne  on  the  voluntary  appearance  of  counseTfoT  the  relators,  and  of 
the  attorney  general  on  behalf  of  the  governor,  the  question  of  juris- 
diction is  submitted  for  our  decisiorijj^^  •    **"" — 


128  SUTHERLAND  V.   THE  GOVERNOR.  §    3 

The  dutv  we  are  asked  to  compel  the  g-overnor  to  perform  is  one 
imposed  upon  him  by  statute,  and  it  consists  in  the  issue  of  a  certain 
certificate  when  he  shall  be  satisfied  that  certain  work  has  been  done 
in  conformity  with  the  law.  The  purpose  of  the  certificate  is  to  fur- 
nish to  the  beneficiaries  under  the  land  grant  the  evidence  of  their 
right  to  the  land,  to  which  the  certificate  if  granted,  is  understood 
to  entitle  them ;  so  that  the  question  involved  in  the  controversy  is, 
so  far  as  the  relators  are  concerned,  one  of  private  right  and  private 
property.  The  governor  as  we  understand  it,  concedes  tjiat  the  canal 
and  harbor  are~cohstructed  in  the  proper  manner,  but  he„iiisists  that 
"the  spirit  and  intent  of  the  federal  and  state  statutes  have  not  been 
complied  with,  inasmuch  as  the  canal  has  been  constructed  upon  pri- 
vate property,  so  that  the  public  are  not  assured  the  benefits  antici- 
pated and  meant  to  be  secured  in  making  the  grant ;  and  for  this 
reason  he  refuses  his  certificate.  The  relators  thereupon  insist  that 
this  presents  for  our  consideration  the  simple  question  whether  the 
governor  construes  correctly  the  statutes  involved,  and  if  not,  they 
claim  to  be  entitled  to  the  proper  remedy  from  the  courts.  In  other 
words,  they  insist  that  the  question  involved  has  become,  by  the  con- 
cession of  the  governor  that  the  work  has  been  done,  purely  a  judi- 
cial question,  involving  nothing  but  a  proper  construction  of  the  law. 

It  is  not  claimed  on  the  part  of  the  relators  that  this  court  or  any 
other  has  jurisdiction  to  require  and  compel  the  performance  by  the 
governor  of  his  political  duties,  or  the  duties  devolved  upon  him  as 
a  component  part  of  the  legislature.  It  is  conceded  that  these,  under 
the  constitution  and  laws,  are  to  be  exercised  according  to  his  own 
judgment,  and  on  his  own  sense  of  official  responsibility,  and  that 
from  his  decision  to  act  or  to  decline  to  act  there  can  be  no  appeal 
to  the  courts.  Nor  is  it  pretended  that  where  an  executive  act  what- 
soever is  manifestly  submitted  to  the  governor's  judgment  or  discre- 
tion, such  judgment  or  discretion  can  be  coerced  by  judicial  writ. 
What  is  claimed  is,  that  where  the  act  is  purely  ministerial,  and  the 
right  of  the  citizen  to  have  it  performed  is  absolute,  the  governor, 
no  more  than  any  other  officer,  is  above  the  laws,  and  the  obligation 
of  the  courts,  on  a  proper  application,  to  require  him  to  obey  the 
laws,  is  the  same  that  exists  in  any  other  case  where  an  official  minis- 
terial duty  is  disregarded. 

It  may  be  doubted  if  this  concession  would  not  require  us  to  dis- 
miss the  present  application,  if  not  to  deny  our  jurisdiction  in  all 
cases  where  the  governor  is  the  respondent  and  his  executive  action 
or  duties  arc  involved.  There  is  no  very  clear  and  palpable  line  of 
distinction  between  those  duties  of  the  governor  which  are  purely 
I)oHtical  rmcl  tbosc  which  are  to  be  considered  ministerial  merely; 
and  if  we  should  undertake  to  draw  one,  and  to  declare  that  in  all 
cases  falling  on  the  one  side,  the  governor  was  subject  to  judicial 
process,  and  in  nil  falling  on  the  other  he  was  independent  of  it,  we 


§    3  TO    PUIUJC    OFFICERS.  I29 

should  open  the  doors  to  an  endless  train  of  litigation,  and  the  cases 
would  be  numerous  in  which  neither  the  governor  nor  the  parties 
would  be  able  to  determine  whether  his  conclusion  was,  under  the 
law,  to  be  final,  and  the  courts  would  be  appealed  to  by  every  dis- 
satisfied party  to  subject  a  co-ordinate  department  of  the  govern- 
ment to  their  jurisdiction.  However  desirable  a  power  in  the  judi- 
ciary to  interfere  in  such  cases  might  seem  from  the  standpoint  of 
interested  parties,  it  is  manifest  that  harmony  of  action  between  the 
executive  and  the  judicial  departments  would  be  directly  threatened, 
and  that  the  exercise  of  such  power  could  only  be  justified  on  the 
most  imperative  reasons.  Moreover,  it  is  not  customary  in  our  re- 
publican government  to  confer  ui)on  the  governor,  duties  merely 
ministerial,  and  in  the  performance  of  which  he  is  to  be  left  to  no 
discretion  whatever;  and  the  presumption  in  all  cases  must  be,  v. here 
a  duty  is  devolved  upon  the  chief  executive  of  the  state  rather  than 
upon  an  inferior  officer,  that  it  is  so  because  his  superior  judgment, 
discretion,  and  sense  of  responsibility  were  confided  in  for  a  more 
accurate,  faithful,  and  discreet  performance  than  could  be  relied 
upon  if  the  duty  were  devolved  upon  an  officer  chosen  for  inferior 
duties.  And  if  we  concede  that  cases  may  be  pointed  out  in  which  it 
is  manifest  that  the  governor  is  left  to  no  discretion,  the  present  is 
certainly  not  among  them,  for  here,  by  the  law,  he  is  required  to 
judge,  on  a  personal  inspection  of  the~work,  and' "must  give  his  certifi- 
cate on  his  own  judgment,  and  not  on  that  of  any  other  person,  offi- 
cer, or  department. 

We  are  not  disposed,  however,  in  the  present  case,  to  attempt  on 
any  grounds  to  distinguish  it  from  other  cases  of  executive  duty  with 
a  view  to  lay  down  a  narrow  rule  which,  while  disposing  of  this  mo- 
tion, may  leave  the  grave  question  it  presents  to  be  presented  again 
and  again  in  other  cases  which  the  ingenuity  of  counsel  may  be 
able  to  distinguish  in  some  minor  particulars  from  the  one  before 
us.  If  a  broad  general  principle  underlies  all  these  cases,  and  re- 
quires the  same  decision  in  all,  it  would  scarcely  be  respectful  to  the 
governor,  or  consistent  with  our  own  sense  of  duty,  that  we  should 
seek  to  avoid  its  application  and  strive  to  decide  each  in  succession 
upon  some  narrow  and  perhaps  technical  point  peculiar  to  the  spe- 
cial case,  if  such  might  be  discovered. 

And  that  there  is  such  a  broad  general  principle  seems  to  us  verv 
plain.  Our  government  is  one  whose  powers  have  been  carefullv  ap- 
portioned between  three  distinct  departments,  which  emanate  alike 
from  the  people,  have  their  powers  alike  limited  and  defined  by  the 
constitution,  are  of  equal  dignity,  and  wdthin  their  respective  spheres 
of  action  equally  independent.  One  makes  the  laws,  another  applies 
the  laws  in  contested  cases,  while  the  third  must  see  that  the  laws  are 
executed.  This  division  is  accepted  as  a  necessity  in  all  free  govern- 
nients,  and  the  very  apportionment  of  power  to  one  department  is 


130  SUTHERLAND  V.   THE  GOVERNOR.  §    3 

understood  to  be  a  prohibition  of  its  exercise  by  either  of  the  others. 
The  executive  is  forbidden  to  exercise  judicial  power  by  the  same 
impHcation  which  forbids  the  courts  to  take  upon  themselves  his 
duties. 

It  is  true  that  neither  of  the  departments  can  operate  in  all  re- 
spects independently  of  the  others,  and  that  what  are  called  the 
checks  and  balances  of  government  constitute  each  a  restraint  upon 
the  rest.  The  legislature  prescribes  rules  of  action  for  the  courts, 
and  in  many  particulars  may  increase  or  diminish  their  jurisdiction; 
it  also  may  in  many  cases,  prescribe  rules  for  executive  action,  and 
impose  duties  upon,  or  take  powers  from  the  governor ;  while  in  turn 
the  governor  may  veto  legislative  acts,  and  the  courts  may  declare 
them  void  where  they  conflict  with  the  constitution,  notwithstanding, 
after  having  been  passed  by  the  legislature,  they  have  received  the 
governor's  approval.  But  in  each  of  these  cases  the  action  of  the  de- 
partment which  controls,  modifies,  or  in  any  manner  changes  or  in- 
fluences that  of  another,  is  had  strictly  within  its  own  sphere,  and 
for  that  reason  gives  no  occasion  for  conflict,  controversy  or  jealousy. 
The  legislature  in  prescribing  rules  for  the  courts,  is  acting  within 
its  proper  province  in  making  law,  while  the  courts  in  dech'ning  to 
enforce  an  unconstitutional  law,  are  in  like  manner  acting  within 
their  proper  province,  because  they  are  only  applying  that  which  is 
law  to  the  controversies  in  which  they  are  called  upon  to  give  judg- 
ment. It  is  mainly  by  means  of  these  checks  and  balances  that  these 
officers  of  the  several  departments  are  kept  within  their  jurisdiction, 
and  if  they  are  disregarded  in  any  case,  the  power  is  usurped  or 
abused,  the  remedy  is  by  impeachment,  and  not  by  another  depart- 
ment of  the  government  attempting  to  correct  the  wrong  by  assert- 
ing a  superior  authority  over  that  which  by  the  constitution  is  its 
equal. 

It  has  long  been  a  maxim  of  this  country  that  the  legislature  can- 
not dictate  to  the  courts  what  their  judgments  shall  be,  or  set  aside 
or  alter  such  judgments  after  they  have  been  rendered.  If  it  could, 
constitutional  liberty  would  cease  to  exist,  and  if  the  legislature  could 
in  like  manner,  override  executive  action  also,  the  government  would 
only  become  a  despotism  under  popular  forms.  On  the  other  hand 
it  would  be  readily  conceded  that  no  court  can  compel  the  legisla- 
ture to  make  or  to  refrain  from  making  laws,  or  to  meet  or  to  ad- 
journ at  its  command,  or  to  take  any  action  whatsoever,  though  the 
duty  to  take  it  be  ever  so  clear  by  the  constitution  or  the  laws.  In 
these  cases  the  exemption  of  the  one  dei^artment  from  the  control  of 
the  other  is  not  only  implied  from  the  frame  work  of  the  govern- 
ment, but  is  indispensably  necessary  if  any  useful  apportionment  of 
power  is  to  exist.  It  remains  then  to  be  seen  on  what  grounds  an  in- 
tcrventif)!!  in  ihe  case  of  executive  (hilics  can  be  justified,  when  the 


§    3  TO    rUBLIC    OFFICERS.  I3I 

Other  departments  acting  within  their  respective  spheres,  are  ad- 
mitted to  be  so  entirely  independent. 

It  certainly  cannot  be  on  the  ground  that  the  executive  is  only  a 
single  person,  who  need  await  the  advice  or  consent  of  no  one  before 
proceeding  to  the  discharge  of  his  duty,  and  whose  default  will  con- 
sequently be  more  palpable  when  he  acts  wrongfully  or  refuses  to 
act  at  all,  than  the  default  of  any  member  of  an  aggregate  body,  like 
a  legislature  or  a  court,  when  action  which  requires  consultation,  de- 
liberation and  the  consent  of  the  majority  fails  to  be  taken. 

In  cases  subject  to  the  processes  of  the  courts,  an  aggregate  body 
may  be  compelled  to  act  as  well  as  an  individual,  though  the  process 
may  not  be  so  speedy,  or  the  ascertainment  of  individual  default  so 
easy  as  when  the  duty  is  required  of  a  single  officer.  Nor  can  it  be 
because  the  reference  of  a  duty  or  authority  to  an  aggregate  body 
raises  an  implication  that  it  is  entrusted  to  its  judgment  or  discre- 
tion any  more  than  if  it  were  referred  for  performance  or  exercise 
to  one  person  only.  The  nature  of  the  act  to  be  done  must  generally 
determine  whether  or  not  it  is  discretionary,  and  not  the  number  of 
persons  who  are  to  do  or  decide  upon  doing  it. 

One  reason  very  strongly  pressed  why  the  governor  is  subject  to 
process-  in  cases  like  the  present  is,  that  the  act  to  be  done  is  not  re- 
qtrired  in  the  performance  of  an  executive  duty  imposed  by  the  con- 
stitution, but  is  in  its  nature  a  ministerial  act,  provided  for  by  the 
statute,  and  which  might,  with  equal  propriety  have  been  required  of 
an  inferior  officeT,  who,  beyond  question,  could  haVe  been  compelled 
■  by  mandamus  to  take  the  necessary  and  the  proper  action  in  the 
__2remises.  And  the  question  is  put  with  some  emphasis,  whether, 
when  individual  interests  depend  upon  the  performance  oi  a  minis- 
temr  action,  to  which  the  party  is  entitled  of  right,  ttije  question 
whether  there  shall  be  a  remedy  or  not  can  depend  upon  the  circum- 
stance that  in  the  particular  case  the  ministerial  action  is  required  of 
a  superior  officer  wdien  there  is  no  reason  in  its  nature  why  it  might 
not  have  been  required  of  an  inferior. 

a\  view  similar  to  this  has  been  taken  in  some  cases,  and  the  courts 
have  undertaken  to  decide  what  are  and  what  are  not  executive 
duties,  and  to  assert  a  right  to  control  the  governor's  action  in  some 
cases,  while  admitting  their  want  of  j'flrisdrction  in  others.  State  v. 
Governor,  5  Ohio  St.  528 ;  Bonner  v.  Pitts,  7  Ga.  473 ;  Gotten  v. 
Governor,  7  Jones  (N.  C.)  545;  Ghamberlain  v,  Governor,  4  Minn. 
309  ;  Pacific  R.  Co.  v.  Governor,  23  Mo.  353  ;  Magrucler  v.  Governor, 
25  Md.  173.  These  cases  for  the  most  part  are  rested  upon  the  dic- 
tum of  Chief  Justice  Marshall  in  ]\r,arbury  v.  Afadrson,  i  Cranch 
(U.  S.)  137,  that  one  of  the  heads  of  department  in  the  federal  gov- 
ernment might  be  compelled  by  mandamus  to  perform  a  mere  min- 
i-sterial  duty;  a  dictum  which  cannot  be  understood  as  expressive  cf 
the  opinion  of  that  eminent  judge  that  the  president  was  subject  to 


132  SUTHERLAND  \\   THE  GOVERNOR.  §    3 

the  like  process,  but  which  is  wholly  inapplicable  to  a  case  like  the 
l^resent,  unless  it  goes  to  that  extent.  For  it  cannot  justly  be 
claimed,  when  federal  and  state  governments  have  been  formed,  so 
far  as  distribution  of  power  is  concerned,  on  the  same  general  plan, 
that  the  executive  of  the  union  can  claim  immunity  from  judicial 
process  any  more  than  the  governor  of  one  of  the  states.  In  many 
cases  it  is  unquestionable  that  the  head  of  an  executive  department 
may  be  required  by  judicial  process  to  perform  a  legal  duty,  while 
in  other  cases,  in  our  judgment,  the  courts  would  be  entirely  without 
jurisdiction;  and,  as  regards  such  an  officer,  we  should  concede  that 
the  nature  of  the  case  and  the  duty  to  be  performed  must  determine 
the  right  of  the  court  to  interfere  in  each  particular  instance.  When 
the  head  of  a  department  acts  as  the  mere  assistant  or  agent  of  the 
executive  in  the  performance  of  a  political  or  discretionary  act,  he 
is  no  more  subject  to  the  control  of  the  courts  than  the  chief  execu- 
tive himself;  but  where  a  ministerial  act  is  required  to  be  done  by 
him,  indepenctently  of  the  executive,  though  in  a  certain  sense  he  is 
an  executive  officer,  it  would"  be  'as  idle  to  dispute  his  responsibility  to 
legal  process,  as  it  would  be  to  make  the  same  claim  to  exemption  on 
behalf  of  an  officer  entrusted  with  '.similar  duties  of  a  lowe«r  grade. 
This  is  emphatically  the  case  under  the  constitution  of  this  state, 
which  provides  for  the  election  .of  the  state  and  tlie  inferior  officers 
by  the  people  alike,  and  .makes  the  chief  offi.cers  of  the  s.tate  below 
the  governor  as  independent  of  his  .control-  'in  the  performance-  of 
thejr  duties  as  are  the  officers  of  the  counties  or  of  the  townships. 

Ijut  when  duties  are  imposed  upon  the  governor,  whatever  be  their 
grade  importance  -or  nature,  we  doubt  the  right  of  the  courts  to  say 
that  this  or  that  duty  might  properly  have  been  imposed  upon  the 
secretary  of  state,  or  a  sheriff  of  a  county  or  other  inferior  officer, 
and  that  inasmuch  as  in  case  it  had  been  so  imposed,  there  would 
have  been  a  judicial  remedy  ior  neglect  'to  perform  it,  therefore 
there  must  be  the  like  remedy  when  the;  governor  himself  is  guilty  of 
a  like  neglect.  The  apportio.nment  of  power,  authority  and  duty  to 
the  governor,  is  "etflTer  made  by  the  people  in  t.he  coastitutLoru  or  by 
the  legislature  in  making  laws  under  it ;  and  the  courts  when. the  ap- 
portionment has  bepn  itiade,  would  be  presumi)tuoujs  if  they  should 
assume  to  declare  that  a  particular  duty  assigned  to  the  governor  is 
not  esscntialt}'  executive,  but  is  of  such  inferior  grade  and  impor- 
tance as  to  pertain  properly  to  some  inferior  office,  and  consequently 
for  the  purjjoses  of  their  jurisdiction,  the  courts  may  treat  it  pre- 
cisely as  if  an  inferior  officer  had  been  required  to  perform  it.  To 
do  this  would  be  not  onJv  to  question  the  wisdom  of  the  Constitution 
or  the  law,  but  also  to  assort  a  right, to  make  the  governor  the  passive 
inslrunicnt  of  tlje  judiciary  in  executing  its  mandates  within  the 
sphrrc  of  its  own  duties.  Were  the  courts  to  go  so  far,  they  would 
break  away  from  those  checks  and  balances  of  government  whicli 


§    3  TO    PUBLIC    OFFICERS.  I33 

were  meant  to  be  checks  of  co-operation  and  not  of  antagonism  or 
mastery,  and  would  concentrate  in  their  own  hands  something  at 
least  of  the  power  which  the  people,  either  directly  or  by  the  action 
of  their  representatives,  decided  to  entrust  to  the  other  departments 
of  the  government. 

There  is  as  to  all  the  authority  specially  confided  to  the  governor 
whether  by  the  constitution  or  the  laws,  no  safe  or  logical  doctrine  but 
this: — that  reasons  of  a  conclusive  nature  must  be  presumed  to  have 
been  found,  requiring  the  particular  authority  to  be  confided  to  the 
chief  executive  as  one  properly  and  peculiarly,  if  not  exclusively 
pertaining  to  the  department  which  he  represents. 

It  is  not  attempted  to  be  disguised  on  the  part  of  the  relators  that 
any  other  course  than  that  which  leaves  the  head  of  the  executive 
department  to  act  independently  in  the  discharge  of  his  duties  might 
possibly  lead  to  unseemly  conflicts,  if  not  to  something  worse,  should 
the  courts  undertake  to  enforce  their  mandates  and  the  executive 
refuse  to  obey  ;  but  it  is  insisted  that  no  such  considerations  are  ad- 
missible in  the  present  case,  in  which  the  governor,  though  question- 
ing our  jurisdiction,  professes  a  willingness  to  be  governed  by  our 
decision  on  it.  The  decision  of  this  question,  however,  is  to  be  a  pre- 
cedent in  this  state,  and  no  voluntary  appearance  or  no  concession 
which  may  be  made  is  to  be  allowed  force  to  induce  us  to  assert 
a  jurisdiction  which,  though  it  might  be  useful  in  this  case,  would 
threaten  conflict  and  danger  in  future  controversies.  Orders  in 
these  cases  can  only  be  enforced  by  process  for  the  punishments  of 
contempts  of  courts,  and  it  is  conceded  that  the  governor  might  sub- 
mit or  not  at  his  option ;  so  that  our  decision  in  fact  could  only  be 
advisory.  And  while  we  should  concede,  if  jurisdiction  was  plainly 
vested  in  us,  the  inability  to  enforce  our  judgment  would  be  no  suf- 
ficient reason  for  failing  to  pronounce  it,  especially  against  an  offi- 
cer who  would  be  presumed  ready  and  anxious  in  all  cases  to  render 
obedience  to  the  law,  yet  in  a  case  where  jurisdiction  is  involved  in 
doubt,  it  is  not  consistent  with  the  dignity  of  the  court  to  pronounce 
judgments  which  may  be  disregarded  with  impunity,  nor  with  that 
of  the  executive  to  place  him  in  a  position  where,  in  a  matter  within 
his  own  province,  he  must  act  contrary  to  his  judgment,  or  stand 
convicted  of  a  disregard  of  the  laws. 

But  it  is  said  that  this  conclusion  will  leave  j^arties  who  have 
rights,  in  many  cases,  w'ithout  remedy.  Practically  there  are  a  great 
many  such  cases,  but  theoretically,  there  are  none  at  all.  All  wrongs, 
certainly,  are  not  redressed  by  the  judicial  department.  A  party  may 
be  deprived  of  a  right  by  a  wrong  verdict,  or  an  erroneous  ruling  of 
a  judge,  and  though  the  error  may  be  manifest  to  all  others,  than 
those  who  are  to  decide  upon  his  rights,  he  wall  be  without  redress. 
A  person  lawfully  chosen  to  the  legislature  may  have  his  seat  given 
by  the  house  to  another,  and  be  thus  wronged  without  reuTedy.     A 


134  SUTHERLAND  V.   THE  GOVERNOR.  §    3 

just  claim  against  the  state  may  be  rejected  by  the  board  of  auditors, 
and  neither  the  governor  nor  the  courts  can  give  rehef.  A  convicted 
person  may  conclusively  demonstrate  his  innocence  to  the  governor, 
and  still  be  denied  a  pardon.  In  which  one  of  these  cases  would  the 
denial  of  redress  by  the  proper  tribunal  constitute  any  ground  for 
interference  by  any  other  authority?  The  law  must  leave  the  final 
decision  upon  every  claim  and  every  controversy  somewhere,  and 
when  the  decision  has  been  made,  it  must  be  accepted  as  correct. 
The  presumption  is  just  as  conclusive  in  favor  of  executive  action 
as  judicial.  The  party  applying  for  action,  which,  under  the  consti- 
tution and  the  laws,  depends  upon  the  executive  discretion,  or  is  to  be 
determined  by  the  executive  judgment,  if  he  fails  to  obtain  it,  has 
sought  the  proper  remedy  and  must  submit  to  the  decision. 

The  cases  of  Hawkins  v.  Governor,  i  Ark.  570 ;  State  v.  Governor, 
25  N.  J.  331  ;  People  v.  Bissel,  19  111.  299;  Dennett,  Petitioner,  32 
Me.  510,  and  Mauran  v.  Smith,  8  R.  I.  192,  which  reach  the  same 
conclusion,  are  so  full  and  satisfactory  in  their  reasoning,  that  we 
might  have  deemed  it  proper  to  have  dismissed  the  case  with  a  sim- 
ple reference  to  them,  if  there  had  not  been  opposing  decisions, 
which  are  supposed  to  detract  from  the  weight  of  their  authority. 
Those  opposing  decisions,  as  we  think,  have  not  been  sufficiently  ob- 
servant of  the  distinction  between  the  governor,  as  being  himself  a 
distinct  and  an  independent  department  of  the  government,  and  those 
administrative  officers,  who.  though  clothed  with  important  powers, 
must  be  subject  in  the  performance  of  their  duties  to  the  regulation, 
direction  and  control  of  the  legislature,  executive  and  judiciary,  ac- 
cording as  the  intervention  of  the  one  or  the  other  in  a  particular 
case  shall  become  proper  or  necessary. 

For  the  reasons  stated  we  must  decline  to  make  any  order  to  show 
cause. 

Campbell  and  Christiancy,  JJ.,  concurred. 

Graves,  Ch.  J.,  did  not  sit  in  this  case. 

In  accord. — Authorities  cited  by  Coolev,  J.,  in  principal  case  and  Mauran 
V.  Smith,  8  R.  I.  192;  People  v.  Morton.  156  N.  Y.  136,  50  N.  E.  791; 
State  V.  Stone,  120  Mo.  428,  25  S.  W.  376;  State  v.  Warmoth,  22  La.  Ann.  i; 
Dennett,  Petitioner,  32  Me.  508;  People  v.  Cullom,  100  111.  472;  Bates  v. 
'i'aylor,  87  Tenn.  319,  11   S.  W.  226. 


§    3  TO    PUBLIC    OFFICERS.  I35 

Contra. 

MARTIN,  GOVERNOR,  v.  INGHAM. 

1888.     Supreme  Court  of  Kansas.     38  Kans.  641 ,  17  Pac.  162. 

Original  proceeding  in  mandamus.  Action  brought  by  Chas.  K. 
Ingham,  a  tax  payer  and  elector  in  the  unorganized  county  of  Grant, 
against  John  A.  Afartin,  Governor,  to  enjoin  him  from  the  perform- 
ance of  certain  acts  in  the  organization  of  such  county.  At  the  hear- 
ing before  the  judge  at  chambers,  a  temporary  injunction  was 
granted,  and  the  defendant  brings  error.  Also  an  application  by 
Geo.  Getty,  county  attorney  of  Hamilton  county,  for  an  original 
writ  in  mandamus,  to  compel  the  governor  to  act  upon  the  return  of 
Thomas  Jackson,  census  taker  for  the  unorganized  county  of  Grant. 

Valentine^  Judge. — This  was  an  action  brought  in  the  district 
court  of  Shawnee  county,  I)y"CHas.""K.  Ingham,  a  citizen,  resident 
tax  payer,  and  eTecto'r"ot'  the  unorganized  c'ounty  of  Grant,  against 
John  A.  Martin,  Governor  of  the  state  of  Kansas,  to  perpetually  en- 
jTjin  the  defendant  from  the  performance  of  certain  acts  in  the  or- 
''ganizaHon  of  said  count}-.  The  facts  as  set  forth  in  plaintiff's  peti- 
tion, are  sworn  to  b}-  him,  and  a  large  number  of  affidavits  of  other 
persons  in  support  of  such  facts  are  filed  with  the  petition  as  ex- 
hibits thereto.  The  petition  and  exhibits  show  substantially,  and  in 
detail,  the  following  facts:  On  or  about  May  9.  1887,  in  pursuance 
of  the  statutes  for  the  organizaTibn  oflTew^counties  (Gen.  Stat.  1868, 
c.  24,  p.  249,  ct  seq.;  Laws  1872  c.  106;  Comp.  Laws,  1885,  c.  24, 
par.  1400-1412;  Laws  1886,  c.  90;  Laws  1887,  c.  128),  and  upon 
proper  preliminary  procedings  had,  the  defendant  as  governor,  ap- 
pointed Thomas  Jackson,  as  the„j:ensus  taker,  the  register  of  the 
■^otes  of  the  electors  ior  the  teniporary  location  of  the  county  seat, 
"and  the  assessor  for  the  unorganized  county  of  Grant.  Immediately 
afterwards  Jackson  qualified  by  taking  the  prescribed  oath  of  office, 
and  proceeded  to  Grant  county,  where  he  did  certain  work  and  after- 
wards, about  August  25,  1887,  made  his  report  to  the  Governor. 
He  \vent,into  the  county  of  Grant  in  a  state  of  intoxication,  and  re- 
mained there  in  a  maudlin  condition  for  two  weeks,  during  which 
time  he  was  incapable  of  doing  any  kind  of  work  properly.  Upon 
his  entering  into  the  county  he  fraudulently,  and  for  pay  entered 
into  an  arrangement  and  cbiispiracy  with  certain  parties  to  speculate 
-npx5n  the  temporarj'  organization  of  the  county  by  the  use  of  their 
Infl^uence  and  office.  Pursuant  to'  said  arrangement  the  first  over- 
liire'was  made  to  persons  interested  in  the  town  of  Cincinnati,  and, 
it  being  refused,  it  was  made  to.  .persons  interested  in  the  town  of 
Ulysses,  and  accepted.  After  this  arrangement  had  been  made, 
Jackson  began  work.     He  then  moved  to  Ulysses.     He  enumerated 


136  MARTIN,    GOVERNOR,    V.    IXGHAM.  §    5 

the  names  of  sixty  fictitious  persons,  and  counted  them  in  favor  of 
Ulysses  for  county  seat.  He  excluded  a  large  number  of  qualified 
voters  from  having  their  preferences  recorded  for  count)-  seat.  This 
number  was  sufficiently  large  to  affect  the  result.  A  large  number 
of  voters  did  vote  for  Cincinnati  for  county  seat,  and  he  corruptly 
changed  their  votes,  and  reported  them  as  voting  for  Ulysses.  He 
announced  the  voting  closed  by  proclamation  from  the  sheriff,  and 
then  took  votes  by  night  for  Ulysses.  He  took  and  recorded  a  large 
number  of  votes  for  Ulysses  of  persons  who  pretended  to  live  upon 
certain-described  lands,  who  did  not  reside  there,  and  whose  names 
and  addresses  were  unknown.  He  took  tlie  votes  of  a  large  number 
of  other  persons,  and  recorded  them  for  Ulysses,  who  were  not 
voters.  A  large  number  of  voters  voting  in  favor  of  Ulysses  w^ere 
procured  by  bribery.  Frauds  of  various  kinds  were  perpetrated 
during  the  enumeration,  with  his  knowledge  and  consent.  He  was, 
and  continued  to  be  drunk,  indecent,  and  disgusting.  His  examina- 
tions were  carried  on  in  a  lascivious  and  disgraceful  manner.  He 
travestied  the  oath  to  persons  enrolled,  and  performed  many  other 
acts  of  like  nature  and  character  as  the  above.  The  petition  of  the 
plaintiff  also  alleges  as  follows : — Th£,plaJiitift"  furtlier^statesthat  the 
defendant,  John  A.  Martin,  governor,  threatens  to,  and  \Hirat_once, 
consider  an  act  upon  the  report  of  the  census  taker,  and  will  find 
therefrom  that  there  are  at  least  two  thousand  five  hundred  actual 
bona  fide  inhabitants  of  the  said  unorganized  county  of  Grant ;  that 
five  hundred  of  them  are  house  holders ;  and  that  there  is  at  least 
$150,000  worth  of  property -above  legal  exemptions,  exclusive  of  rail- 
road property,  of  which  not  less  than  $75,000  worth  is  real  estate  ;  and 
will  appoint  three  persons  commissioners  of  said  county,  one  to  act  as 
county  clerk,  and  one  to  act  as  sheriff ;  and  will  designate  and  de- 
clare the  town  of  Ulysses,  as  the  place  chosen  by  the  greater  number 
of  legal  voters,  to  be  the  temporary  county  seat  of  said  county  of 
rirant,  unless  he  shall  be  restrained  and  ])rohibited  from  so  doing  by 
the  order  and  injunction  of  this  court."  The  plaintiff  also  asks  for 
a  temporary  injunction.  r>eforc  any  hearing  was  had,  however,  the 
governor  signed  the  following  stipulation:  "(i).  I  desire  that  the 
court  shall  thoroughly  examine  into  all  questions  of  fraud,  partiality, 
drunkenness,  bribery,  or  unfair  dealings  on  the  part  of  the  enumer- 
ator, (2).  T  ex])ressly  waive  any  objection  as  to  the  capacity  of  the 
present  plaintiff  to  bring  suit,  and  at  no  stage  of  the  proceeding  shall 
this  (|ucstion  be  raised  by  myself.  (3).  I  do  not  waive,  however, 
my  right  to  dispute  the  authority  of  the  coiu't  to  inquire  into  these 
inatfcrs.  John  A.  Martin,  defendant."  Afterwards,  and  upon  the 
foregoing  affidavits  and  petition,  and  upon  the  plaintiff's  application 
for  a  temporary  injunction,  a  hearing  was  had  before  the  district 
court  at  rhamlxTs,  and  upon  such  hearing  the  judge  granted  the 
tc'nii)orary  injiniction,  and  to  reverse  this  order  granting  the  tempo- 


§    3  TO    PUBLIC    OFFICERS.  137 

rary  injunction,  the  defendant,  as  plaintiff  in  error,  brings  the  case 
tc  this  court. 

It  is  claimed  in  this  court,  and  also  claimed  in  the  court  below, 
that  the  courts  of  Kansas  have  no  jurisdiction  to  hear  and  determine 
any  case  like  the  one  at  bar.  Indeed,  it  is  claimed  that  the  courts  of 
Kansas  have  no  jurisdiction  to  hear  and  determine  any  controversy 
that  brings  into  question  any  act  or  acts  of  any  member  of  the  execu- 
tive department  of  the  state,  and  in  Kansas  all  the  state  officers  are 
members  of  the  executive  department.  In  Kansas,  as  elsewhere, 
there  are  three  great  branches  or  divisions  of  civil  power,  which, 
with  some  exceptions,  are  to  be  exercised  by  three  separate  depart- 
ments;  the  legislative,  or  the  law  making  power,  the  judicial,  or  the 
law  construing  power,  and  the  executive,  or  the  law  enforcing 
power.  With  some  exceptions  the  legislative  power  is  vested  in  the 
legislature,  the  judicial  power  is  vested  in  the  courts,  and  the  execu- 
tive power  is  vested  in  an  executive  department.  In  Kansas,  under 
the  constitution,  the  executive  department  is  constituted  as  follows : 
"Section  i.  The  executive  department  shall  consist  of  a  governor, 
lieutenant-governor,  secretary  of  state,  auditor,  treasurer,  attorney 
general,  and  superintendent  of  public  instruction."  Const,  art.  i.  §  i. 
The  governor,  however,  is  at  the  head  of  the  executive  department, 
for  §  3,  of  the  same  article  of  the  constitution,  also  provides  as  fol- 
lows: "§3-  The  supreme  executive  power  of  the  state  shall  be 
vested  in  a  governor,  who  shall  see  that  the  laws  are  faithfully  exe- 
cuted." It  is  generally  supposed  that  in  a  republican  government 
all  men  are  subject  to  the  laws,  and  to -the  due  administration  of 
them,  and  that  no  man,  nor  any  class  of  men,  is  exempt.  There  is 
no  express  provision  in  the  constitution,  nor  in  any  statute,  exempt- 
ing any  member  of  the  executive  department,  chief  or  otherwise, 
from  being  sued  in  any  of  the  courts  of  Kansas,  or  in  any  action 
coming  within  the  jurisdiction  of  any  particular  court,  civil  or 
criminal,  upon  contract  or  upon  tort,  in  quo  warranto,  habeas  corpus, 
mandamus  or  injunction ;  or  from  being  liable  to  any  process  or  writ 
issued  properly  by  any  court,  as  subpoenas,  summonses,  attachment, 
and  other  writs  or  process ;  and  if  any  of  such  officers  are  exempt 
from  ail  kinds  of  suits  in  the  courts,  and  from  all  kinds  of  process 
issued  by  the  courts,  it  must  be  because  of  some  hidden  or  occult 
implications  of  the  constitution  or  the  statutes,  or  from  some  inherent 
and  insuperable  barriers  founded  in  the  structure  of  the  government 
itself,  and  not  from  the  express  provisions  of  the  constitution  or 
the  statutes.  So  far  as  the  present  case  is  concerned,  however, 
which  is  an  injunction,  and  another  case  which  is  also  before  us, 
and  which  we  are  also  considering,  which  is  mandamus,  it  is  onlv 
necessary  for  us  to  consider  whether  the  governor,  without  refer- 
ence to  the  other  members  of  the  executive  department,  is  subject  to 
the  action  of  mandamus  and   injunction,  or  not.     But,   in  order 


136  MARTIX,   CUDVERNOR^   V.    INGHAM.  §    3 

to  properly  consi-der  these  questions,  it  is  necessary  that  we  consider 
many  other  questions.  Itmi^ht  be  proper  here  to  state  that,  so 
far_as_the  express  terms  of  the  constitution  and  the  statutes  afe~coh- 
cerneclj.the  governor  is  no  more  exempt  from  mandamus  or  injunc- 
tion than  he  is  from  any  other  action  or  proceeding  in  the  courts, 
or  than  he  is  from  any  process,  civil  or  criminal,  issued  by  the  courts. 
We  believe  that  only  four  cases  can  be  found  in  the  reports  of  the 
Supreme  Court  of  Kansas  in  which  it  has  been  sought  by  a  judicial 
determination  to  control  any  of  the  acts  of  the  governor.  The 
first  was  the  case  of  the  State  v.  Robinson,  i  Kan.  i8.  That  was  an 
application  for  a  writ  of  mandamus  to  compel  the  board  of  state 
canvassers  to  canvass  the  election  returns.  It  does  not  appear  that 
any  question  of  jurisdiction  was  raised  or  thought  of  in  that  case, 
but  the  court  decided  the  case  upon,  its  merits  and  refused  the  writ. 
The  second  was  the  case  of  In  re  Cunningham,  14  Kan.  416,  in  which 
an  application  was  made  for  a  writ  of  mandamus  to  compel  the 
governor,  Thomas  A.  Osborn,  to  issue  a  patent  for  certain  lands. 
It  was  understood  at  the  time  that  the  governor  was  willing  to  issue 
the  patent  if  the  supreme  court  said  that  it  was  his  duty  to  do  so, 
and  the  only  question  presented  to  the  court,  or  decided  by  it.  was 
whether  such  was  his  duty  or  not.  The  court  held  that  it  was  not 
his  duty,  and  refused  the  writ.  The  third  was  that  of  State  v. 
St.  John,  21  Kan.  591.  In  that  case  the  alternative  writ  of  manda- 
mus was  allowed.  At  first  the  defendant's  counsel  filed  an  answer 
disputing  the  jurisdiction  of  the  court,  but  afterwards  the  governor, 
by  his  counsel  expressly  waived  all  question  of  jurisdiction,  and 
the  governor  himself  also  desired  that  the  court  should  hear  and 
determine  the  case  without  any  reference  to  any  question  of  jurisdic- 
tion, stating  that  he  would  obey  the  decision  of  the  court,  whatever 
it  might  be.  The  court  heard  and  determined  the  cause,  and  awarded 
a  peremptory  writ  of  mandamus ;  but  no  such  writ  was  ever  issued, 
as  the  governor  immediately  proceeded  to  act  in  accordance  with 
the  decision  of  the  court,  which  rendered  the  writ  unnecessary.  The 
fourth  case  was  the  case  of  Wilson  v.  Price-Raid  Aud.  Com.,  31 
Kan.  257,  I  Pac.  587.  That  case  was  a  supposed  appeal  from  the 
auditing  commission  to  the  supreme  court.  No  question  of  juris- 
diction was  raised,  but  the  court  itself,  for  inherent  defects  and 
want  of  merit  in  the  case  dismissed  the  same.  There  are  a  number 
of  cases  in  which  the  other  state  officers  than  the  governor  have 
been  sued  in  the  courts  of  Kansas.  Two  of  such  cases  are  the  cases 
of  State  v.  Roljinson,  above  cited,  and  Wilson  v.  Price-Raid  Aud. 
Com.  above  cited.  The  other  cases  are  as  follows :  In  the  case  of 
State  V.  Lawrence,  3  Kan.  95,  an  application  was  made  for  a  writ 
of  mandamus  to  com])el  the  defendant,  as  secretary  of  state,  to 
jssnc  a  rcrtificntc*  of  election  to  the  relator.  The  question  of  the  ju- 
risdiction of  the  court  to  grant  the  same,  was  raised,  but  the  court 


^    3  TO    PUBLIC    OFFICERS.  I39 

decided  in  favor  of  its  jurisdiction,  and  granted  a  peremptory  writ 
of  mandamus.  In  the  case  of  State  v.  Jioard,  4  Kan.  261,  which 
board  consisted  of  the  state  superintendent  of  pubHc  instruction,  the 
secretary  of  state,  and  the  attorney  general,  no  question  of  jurisdic- 
tion was  raised,  and  the  court  decided  the  case  upon  its  merits,  and 
refused  to  grant  the  writ  of  mandamus  prayed  for.  In  the  case  of 
State  V.  Barker,  4  Kan.  379,  no  question  of  jurisdiction  was  raised, 
?nd  the  court  decided  the  case  upon  its  merits,  and  awarded  a  per- 
emptory writ  of  mandamus  to  compel  the  secretary  of  state  to  deliver 
to  the  relator  copies  of  the  recently  enacted  laws  for  the  purpose  that 
he  might  publish  the  same  for  the  state.  The  case  of  State  v. 
r>arker,  4  Kan.  435,  is  similar  to  the  case  last  cited,  except  that  in 
this  case  it  was  decided  that  the  relator  was  not  entitled  to  copies 
of  the  laws,  and  the  writ  of  mandamus  was  refused.  In  the  case 
of  State  V.  Anderson.  5  Kan.  90,  an  injunction  was  prayed  for 
against  the  state  treasurer,  and  the  case  was  decided  upon  its  merits. 
and  it  was  held  that  upon  the  facts,  the  plaintiff  was  not  entitled 
to  the  injunction.  In  the  case  of  Graham  v.  Horton,  6  Kan.  343, 
an  injunction  was  allowed  in  favor  of  Horton  and  against  the 
state  treasurer.  In  the  case  of  State  v.  Thoman,  10  Kan.  191,  a 
peremptory  writ  of  mandamus  was  allowed  against  the  auditor.  The 
case  of  Prouty  v.  Stover,  11  Kan.  235,  was  tried  upon  its  merits 
without  any  question  of  jurisdiction  being  raised,  and  the  writ  of 
mandamus  prayed  for  was  refused.  The  case  of  Martin  v.  Francis, 
13  Kan.  220,  was  decided  upon  its  merits  without  any  question  being 
raised  with  respect  to  the  jurisdiction  of  the  court,  and  the  writ  of 
mandamus  prayed  for  was  refused.  In  the  case  of  Francis  v.  Atchi- 
son, etc.  R.  Co.,  19  Kan.  303,  an  injunction  was  allowed  by  the 
district  court  against  the  state  treasurer,  and  the  supreme  court  heard 
the  case  upon  its  merits,  without  reference  to  the  question  of  juris- 
diction, and  decided  that  upon  the  facts  of  the  case  the  railroad 
company,  which  was  the  plaintiff  below,  was  not  entitled  to  such 
injunction.  In  the  case  of  State  v.  Francis,  23  Kan.  495,  a  peremp- 
tory writ  of  mandamus  was  allowed  against  the  treasurer.  In  the 
case  of  Crans  v.  Francis,  24  Kan.  750,  mandamus  against  the  treas- 
urer was  in  effect  sustained.  In  the  case  State  v.  Francis,  26  Kan. 
724,  injunction  against  the  state  treasurer  was  sustained.  In  the  case 
of  Atchison,  etc.  R.  Co.,  v.  Howe,  32  Kan.  jt^j,  5  Pac.  397,  injunction 
against  the  state  treasurer  was  also  sustained. 

It  would  seem  that  the  question  as  to  whether  the  courts  of  Kan- 
sas may  control  any  of  the  acts  of  the  governor  is  still  an  open  one. 
The  question,  however,  whether  the  courts  of  Kansas  can  control 
any  of  the  acts  of  the  other  members  of  the  executive  department 
or  not,  would  seem  from  the  general  practice  of  the  bench  and  the 
bar,  and  from  the  actual  decisions  of  the  courts,  to  have  been  set- 
tled in  the  affirmative.     Of  course  this  general  practice  and  these 


140  MARTIN,    GOVERNOR,   V.    INGHAM.  v^    3 

decisions,  with  relation  to  the  other  members  of  the  executive  de- 
partment, do  not  necessarily  control  with  reference  to  the  governor, 
for  there  is  some  room  under  §§  i  and  3  of  art.  i  of  the  con- 
stitution above  quoted,  for  a  distinction  to  be  made  between  the 
acts  of  the  governor  and  the  acts  of  the  other  members  of  the 
executive  department ;  for  while  the  executive  department  consists 
of  the  governor,  the  lieutenant  governor,  secretary  of  state,  auditor, 
treasurer,  attorney  general,  and  the  superintendent  of  public  instruc- 
tion, yet  the  governor  is  the  supreme  head  thereof.  In  the  other 
states  there  is  a  great  conflict  of  authority  as  to  whether  any  of  the 
acts  of  the  governor  may  be  subject  to  judicial  control  or  not.  Upon 
the  affirmative  of  this  question  the  following  among  other  cases  are 
cited:  Tennessee,  etc.,  R.  Co.  v.  Moore  (Mandamus),  36  Ala.  371  ; 
Middleton  v.  Lowe  (Mandamus).  30  Cal.  596;  Harpending  v.  Haight 
(Mandamus),  39  Cal.  189;  Governor  v.  Nelson  (Alandamus),  6  Ind. 
496;  Baker  v.  Kirk  (Mandamus),  33  Ind.  517;  Gray  v.  State  (Man- 
damus), 72  Ind.  567;  Magruder  v.  Swann  (?\Iandamus),  25  Isld. 
173;  Groome  v.  Gwinn  (Mandamus),  43  Md.  572;  Chamberlain 
V.  Sible}'  (Alandamus),  4  Minn.  309  (Gil.  228)  ;  Chumasero  v.  Potts 
(Alandamus),  2  Alont.  242;  Wall  v.  Blasdel,  (Mandamus),  4  Nev. 
241;  Gotten  V.  Ellis  (Mandamus),  7  Jones  (N.  C.)  545;  State  v. 
Chase  (Alandamus),  5  Ohio  St.  528.  A  vast  number  of  cases  might 
be  cited  where  courts  have  held  that  the  official  acts  of  the  members 
of  the  executive  department  other  than  the  governor  may  be  con- 
trolled by  judicial  determination.  Upon  the  negative  of  the  above 
question  the  following  cases  are  cited  :  Hawkins  v.  Governor  (Alan- 
damus), I  Ark.  570;  State  v.  Drew  (Mandamus),  17  Fla.  6y;  Low 
V.  Towns  (Alandamus),  8  Ga.  360;  People  v.  Bissell  (Alandamus), 
19  111.  299;  People  V.  Yates  (Alandamus),  40  111.  126;  People  v. 
McCullom  (Mandamus),  100  111.  472;  State  v.  Warmouth  (Alanda- 
mus), 22  La.  Ann.  i;  Dennet  v.  Governor  (Alandamus),  32  Ale. 
508;  People  V.  Governor  (Alandamus),  29  Alich.  320;  Rice 
V.  Austin  (Mandamus),  19  Alinn.  103  (Gil.  74)  ;  Western 
R.  Co.  V.  De  Graff  (Alandamus),  27  Minn,  i,  6  N.  W.  341  ;  Vicks- 
burg  R.  Co.  V.  Lowry  (Alandamus),  61  Miss.  102;  State  v.  Gov- 
ernor (Alandamus),  39  AIo.  388;  State  v.  Governor  (Alandamus), 
25  N.  J.  Law,  331;  Hartranft's  Appeal  (Contempt),  85  Pa.  St. 
433;  Alauran  v.  Smith  (Alandamus),  8  R.  I.  192;  Turnpike  v.. 
iirown  (Alandamus),  8  Baxt.  (Tcnn.)  490. 

There  are  other  cases  cited  which  hold  that  none  of  the  acts 
(>i  any  of  the  officers  belonging  to  the  executive  department  can  be 
controlled  by  the  courts,  among  which  cases  are  the  following: 
People  v.  Hatch  (Alandamus),  33  111.  9;  State  v.  Deslonde  (Alan- 
damus), 27  La.  Ann.  71  :  State  v.  Dike  (Alandamus).  20  Alinn.  363 
(Gil.  314)  :  State  v.  Whitromb  (ATanadmus),  28  ATinn.  50,  8  N.  W. 
902;  Sccombc  V.  Kittlcsfin   (Injunction),    29  ATinn.  555,  12  N.  W. 


§    3  '^^    PUBLIC    OFFICERS.  14! 

519;  Houston,  etc.  R.  Co.  v.  Randolph  (Mandamus),  24  Tex.  317; 
Bledsoe  v.  International  R.  Co.  (Mandamus),  40  Tex.  537;  Gal- 
veston, etc.  R.  Co.  V.  Gross  (Mandamus),  47  Tex.  428;  Chalk  v. 
Darden  (Mandamus),  id.  438.  The  principal  g^round  apon  which 
these  last-cited  cases  were  decided  is  that  the  officers  against  whom 
the  court  was  asked  to  entertain  jurisdiction  were  members  of  the 
executive  department,  the  same  as  the  governor,  though  not  at 
the  head  as  he  is,  and  that  therefore  as  the  acts  of  the  governor,  in 
their  opinion  could  not  be  controlled  by  the  courts,  because  he  is 
a  member  of  the  executive  department,  neither  can  the  acts  of  any 
other  officer  of  the  executive  department  be  controlled.  This  same 
kind  of  reasoning,  however,  is  used  by  the  supreme  court  of  Cali- 
fornia to  prove  that  the  acts  of  the  governor  in  some  instances  may 
be  controlled  by  the  courts.  Harpending  v.  Haight,  39  Cal.  189. 
In  this  case  it  is  said  in  substance  that  if  it  be  conceded  that  the 
governor,  because  he  is  the  chief  of  the  executive  department,  may 
for  that  reason  be  allowed  to  enjoy  an  absolute  immunity  from 
judicial  process,  even  when  his  duty  in  the  given  instance  is  only 
ministerial,  and  in  a  case  where  an  individual  has  a  vested  right 
to  have  the  duty  performed,  then  the  same  exemption  from  judicial 
process  may  be  set  up  by  any  one  of  the  other  officers  of  the 
executive  department.  But  it  is  held  in  that  case  that  the  other 
members  of  the  executive  department  could  not  effectively  inter- 
pose such  exemption,  and,  therefore  that  the  governor  could  not. 
It  w^ould  therefore  seem  from  two  classes  of  cases  that  the  courts 
must  hold,  either  that  the  courts  may  control  some  of  the  official 
acts  of  all  the  members  of  the  executive  department,  including  the 
governor,  or  that  they  cannot  control  any  of  the  official  acts  of  any 
of  the  officers.  In  this  state  it  has  already  been  held  that  some  of  the 
official  acts  of  some  of  the  officers  of  the  executive  department  may 
be  controlled  by  the  courts,  and,  therefore  if  the  above  reasoning 
is  sound,  it  would  follow  that  some  of  the  acts  of  the  governor 
could  also  be  controlled  by  the  courts.  It  would  be  proper  here  to 
say  that  none  of  the  courts  ever  attempt,  by  either  injunction  or 
mandamus,  or  by  any  other  action  or  proceeding,  to  control  execu- 
tive, judicial,  legislative,  or  political  discretion ;  and  never  indeed 
attempts  to  control  any  pure  legislative,  judicial  or  executive  act 
of  any  kind,  nor  pure  discretion  of  any  kind,  except  when  a  superior 
court  on  appeal,  reviews  a  decision  of  an  inferior  court  and  courts 
generally  do  not  interfere  by  injunction  or  mandamus  where  an- 
other plain  and  adequate  remedy  exists.  The  only  acts  of  public 
functionaries  wdiich  the  courts  ever  attempt  to  control  by  either 
injunction  or  mandamus,  are  such  acts  only  as  are  in  their  nature 
strictly  ministerial ;  and  a  ministerial  act  is  one  which  a  public  offi- 
cer or  agent  is  required  to  perform  upon  a  given  state  of  facts,  in  a 
prescribed  manner,  in  obedience  to  the  mandate  of  legal  authority, 


142  MARTIN,   GOVERNOR,   V.    INGHAM.  ^    3 

and  without  regard  to  his  own  judgment  or  opinion  concerning 
the  proprety  or  impropriety  of  the  act  to  be  performed.  Hence 
many  of  the  above  cited  cases,  wherein  it  is  said  that  the  acts  of  the 
executive  officers  of  the  state  could  not,  in  the  particular  instance 
under  consideration,  be  controlled  by  the  courts,  are  not  in  conflict 
with  those  decisions  that  hold  otherwise;  for  many  of  such  cases 
were  decided  upon  the  theory  that  the  court  was  asked  to  control 
executive,  judicial  or  political  action,  or  discretion  of  some  kind. 
If  we  should  deduct  all  the  cases  that  were  decided  upon  the  theory 
that  they  were  asked  to  control  executive,  political  or  discretionar\- 
action  of  some  kind,  and  not  consider  any  of  the  dictum  of  such 
cases,  and  thereby  leave  only  such  cases  as  necessarily  included  a 
decision,  (not  dictum,)  and  decided  that  the  courts  could  not  in 
any  case  control  any  act  to  be  performed  by  the  governor,  the  weight 
of  the  judicial  authority  would  probably  be  that  the  courts  may  con- 
trol any  mere  ministerial  act  to  be  performed  by  the  governor. 

The  decisions  holding  that  the  courts  cannot  control  any  of  the 
acts  of  the  governor  are  based  upon  many  different  kinds  of  rea- 
sons. Some  of  such  decisions,  like  the  one  in  the  case  of  Hawkins  v. 
Governor,  i  Ark.  570,  and  the  one  in  the  case  of  State  v.  Governor, 
25  N.  J.  Law,  331,  are  based  upon  the  theory  that  all  duties  im- 
posed upon  the  governor  by  the  constitution  are  strictly  and  exclu- 
sively executive  or  political  and  not  ministerial,  and  therefore  that  the 
courts  cannot  interfere  with  the  performance  or  non-performance 
of  those  duties.  There  are  other  decisions,  like  the  one  in  the 
case  of  Turnpike  Co.  v.  Brown,  8  Baxt.  (Term.)  490,  and  the  one  in 
the  case  of  State  v.  Drew,  17  Fla.  6y,  which  extend  this  principle 
and  hold  that  all  duties  imposed  upon  the  governor  by  either  the 
constitution  or  the  statutes  must  necessarily  be  executive  or  po- 
litical, and  not  ministerial,  and  this  upon  the  theory  that  the  mere 
act  of  conferring  duties  upon  the  governor,  whatever  their  inherent 
essences  may  be,  renders  them  executive  or  political.  It  is  said  that, 
when  they  are  conferred  upon  the  governor  rather  than  upon  some 
inferior  officer,  they  are  so  conferred  because  in  the  o]:)inion  of  the 
law-making  power,  founded  presumi:)tively  upon  sufficient  reasons, 
the  duties  themselves,  properly  and  peculiarly,  if  not  necessarily, 
belong  to  the  executive  department,  and  that  they  are  conferred  upon 
the  governor  because  of  his  discretion,  judgment,  sense  of  responsi- 
bility, and  fitness ;  and  therefore  it  is  claimed  that  these  duties  must 
necessarily  be  executive  or  political,  and  not  merely  ministerial, 
whatever  they  may  be  in  their  inherent  and  essential  characteristics. 
If  this  were  true  when  the  duties  were  conferred  upon  the  chief 
of  the  executive  dc])artment,  why  would  it  not  also  be  true  when 
siirh  duties  are  conferred  upon  any  other  member  of  the  executive 
department  ?  Ts  not  any  particular  power  substantially  the  same 
wherever  it  may  be  placed?     Judicial   power  in  the  hands  of  a 


§    3  TO    PUBLIC    OFFICERS.  143 

justice  of  the  peace  is  substantially  the  same  as  it  is  when  placed  in 
the  hands  of  a  judge  of  the  supreme  court.  It  may  be  admitted, 
however,  that  with  respect  to  some  duties,  and  even  with  respect 
to  some  ministerial  duties,  a  transformation  might  take  place 
if  such  duties  were  transferred  from  an  inferior  officer  and  placed 
in  the  hands  of  the  highest  executive  officer ;  for  some  ministerial  du- 
ties embody  within  their  confines  some  slight  elements  of  judgment 
and  discretion ;  but  can  this  be  true  with  respect  to  all  ministerial 
duties?  Suppose  that  such  duties  in  their  very  natures  and  es- 
sences are  nothing  more  than  the  purest  of  ministerial  duties,  with  no 
elements  of  judgment  or  discretion  in  them,  and  not  in  any  manner 
connected  with  any  legislative,  judicial,  or  executive  duty,  and  are 
such  duties  only  as  could  be  conferred  upon  any  other  citizen  of 
the  state  of  Kansas ;  then  why  should  they  be  considered  as  being 
transformed  into  executive  or  political  duties  by  being  conferred 
upon  the  governor?  Would  they  not  still  be  ministerial  duties? 
The  conferring  of  pure  ministerial  duties  like  the  above  mentioned, 
upon  the  courts  or  the  judges  of  courts,  never  transforms  them  into 
judicial  duties ;  and,  although  mandamus  will  not  lie  to  control 
or  review  judicial  determination  or  discretion,  yet  it  will  lie  to  control 
any  pure  ministerial  act  of  the  court  or  judges  thereof.  Duffet  v. 
Crosier,  30  Kan.  1 50,  i  Pac.  59 ;  High  Extr.  Rem.  §  230,  ct  scq. 
Many  years  ago  Chief  Justice  Marshall  in  the  case  of  Marbury  v. 
Madison,  i  Cranch  (U.  S.)  137,  said:  "It  is  not  by  the  office 
of  the  person  to  whom  the  writ  is  directed,  but  the  nature  of  the 
thing  to  be  done,  that  the  propriety  or  impropriety  of  issuing  a 
mandamus  is  to  be  determined."  And  such  is  the  rule  in  all  cases, 
unless  the  courts  are  required  to  make  an  exception  in  favor  of  the 
governor.  In  all  other  cases  it  is  not  the  rank  or  the  character 
of  the  individual  officer,  but  the  nature  of  the  thing  to  be  done, 
which  governs.  No  other  officer  is  above  the  law,  and  every  other 
officer  to  whatever  department  he  may  belong,  may  be  compelled 
to  perform  a  pure  ministerial  duty.  The  objection  oftenest  urged 
against  the  court  exercising  any  control  over  any  of  the  acts  of  the 
governor  is  that  the  three  departments  of  the  government,  the  legis- 
lative, the  judicial,  and  the  executive,  are  separate  and  distinct,  and 
that  each  is  equal  to,  co-ordinate  with,  and  wholly  independent  of 
the  other.  Now  it  is  true,  with  some  exceptions,  that  the  legislature 
cannot  exercise  judicial  or  executive  power,  that  the  courts  cannot 
exercise  legislative  or  executive  power,  and  that  the  executive  de- 
partment cannot  exercise  legislative  or  judicial  power;  but  it  is 
not  true  that  they  are  entirely  separate  from  each  other  or  indepen- 
dent of  each  other,  or  that  one  of  them  may  not  in  some  instances 
control  one  of  the  others.  The  most  of  the  jurisdiction  possessed 
by  the  courts  depends  entirely  upon  the  acts  of  the  legislature,  and 
the  entire  procedure  of  the  courts,  civil  and  criminal,  is  prescribed 


144  MARTI  X,    GOVERNOR,   V.    INGHAM.  §    3 

by  the  legislature.  Nearly  all  of  the  duties  of  the  governor  are  im- 
posed upon  him  by  the  legislature.  The  legislature  may  also  im- 
peach the  governor  or  any  other  state  or  judicial  officer  mentioned 
in  the  constitution.  The  courts  may  construe  all  the  acts  of  the 
legislature,  whether  such  acts  have  been  signed  by  the  governor 
or  not,  and  may  determine  whether  they  are  in  contravention  of  the 
constitution  or  not,  and,  if  believed  to  be  in  contravention  of  the 
constitution,  may  hold  them  void.  The  courts  may  also  determine 
that  a  supposed  member  of  the  legislature  is  not  a  member  at  all, 
because  he  represents  no  district ;  and  may  also  determine  that 
the  legislature  cannot  consist  of  more  than  a  certain  number  of 
members.  Prouty  v.  Stover,  ii^  Kan.  235;  State  v.  Tomlinson, 
20  Kan.  692 ;  State  v.  Francis,  26  Kan.  724.  The  courts  may  also 
pass  upon  the  validity  of  the  acts  of  the  governor.  State  v.  Ford 
Co.  12  Kan.  441.  It  is  also  believed  that  the  courts  have  power 
to  require  the  governor  to  attend  a  trial  as  a  witness,  and,  if  so, 
have  they  not  the  further  power  to  imprison  him  for  contemi^t  if 
he  disobeys  ?  And  if  so  would  not  the  courts  then  interfere  with  his 
ability  to  perform  his  executive  duties.  In  such  a  case  the  state  might 
have  to  rely  upon  the  lieutenant-governor.  No  act  of  the  legislature 
can  become  a  law  unless  it  is  presented  to  the  governor  for  his  signa- 
ture and  approval.  The  governor  may  also  convene  the  legislature 
whenever  he  chooses.  Also  the  legislature  and  the  courts  are  able  to 
perform  their  respective  duties  unmolested,  because  of  the  known 
power  of  the  governor  to  call  out  the  militia  to  aid  and  protect  them 
in  doing  so,  if  necessary.  It  will  be  seen  from  the  foregoing  that  the 
different  departments  of  the  government  are  not  independent  of  each 
other.  The  power  last  mentioned,  however,  is  also  invoked  as  an  ar- 
gument against  the  courts'  attempting  to  control  any  act  or  acts 
of  the  governor.  It  is  said  that  if  the  governor  opposes  any  order 
or  judgment  of  the  court,  it  cannot  be  enforced;  for  it  is  said  that 
he  has  the  entire  control  of  the  militia.  But  are  the  courts  to  an- 
ticii)ate  that  the  governor  is  not  to  perform  his  duties?  Should  not 
the  cfjurts  rather  presume  that,  when  a  controversy  is  determined 
by  the  courts, — the  only  triliinials  authorized  by  the  constitution 
or  the  statutes  to  construe  the  laws,  and  to  determine  controversies 
by  way  of  judicial  determination, — the  governor,  as  the  chief  execu- 
tive officer  of  the  state,  would  see  that  such  determination  should  be 
carried  into  full  effect.  Such  would  be  his  duty,  and  no  one  should 
siippfise  that  he  would  fail  to  jicrform  his  duty,  when  his  duty  is  made 
manifest  by  a  judicial  determination  of  the  courts.  No  dei:»artment 
should  ever  cease  to  perform  its  functions  for  fear  that  some  other 
dci)artment  might  render  its  acts  nugatory,  or  for  fear  that  its  acts 
in  sftmc  manner  might  affect  the  conduct  or  status  of  some  other 
flepartniont.  Each  clcpartmcnt  ought  to  do  what  is  right  within 
its  own  sphere,  and  presunx-  that   the  dtbcr  departments  would  do 


§    3  'iO    PULILIC    UFFlCliKS.  145 

the  same.  The  legislature  is  not  bound  to  refrai.n  from  passing 
laws  affecting  the  duties  of  the  executive  department,  whether  the 
governor  approves  them  or  not.  The  legislature  may  pass  laws 
over  the  governor's  veto,  and  this  for  the  government  of  the 
executive  department,  and  the  legislature  is  not  bound  to  anticipate 
that  the  governor  might  refuse  to  enforce  such  laws.  Each  depart- 
ment should  scrupulously  perform  the  duties  peculiarly  entrusted 
to  its  own  department,  without  reference  to  how  the  same  might 
affect  the  other  departments.  Besides  if  this  argument  from  the 
governor's  control  of  the  militia  were  carried  to  its  full  extent,  it 
would  ])revent  any  court  from  ever  issuing  a  subpoena,  or  any  other 
writ  or  process  to  the  governor,  or  from  ever  arresting  him  or  order- 
ing his  arrest  for  any  assault  and  battery,  or  for  anything  else,  be- 1 
cause  the  governor  might  in  any  such  case  refuse  to  obey  the  writ 
or  the  order  of  the  court,  and  might  call  on  the  militia  to  assist 
him  in  his  resistance. 

Perhaps  we  should  say  something  further  with  respect  to  the  claim 
that  the  three  great  branches  of  the  government,  the  legislative,  the 
judicial,  and  the  executive,  are  co-equal  and  co-ordinate,  and  that 
one  cannot  control  and  direct  the  others.  This  may  be  true  to  some 
extent,  and  yet,  as  we  have  already  seen,  it  is  not  true  in  many 
cases.  For  the  purpose  of  j)assing_laws,._the  legislature  is  supremej^ 
and  the  other  departments  must  .obey.  And  for  the  purpose  ot 
ultimately  enforcing  the  law^s,  the  executive. department  is  supreme, 
and  the  other  departments  must  obey.  For  the  purpose  of  con- 
struing the  laws,  and  of  determining  controversies,  the  courts  are 
supreme  and  the  other  departments  must  obey.  But  the  executive 
can  enforce  the  statutory  laws  only  as  the  legislature  has  enacted 
them,  and,  where  the  courts  have  construed  the  laws,  (statutory  or 
constitutional,)  in  the  determination  of  controversies,  the  executive 
department  can  enforce  them  only  as  thus  construed,  and 
is  bound  to  see  that  the  laws  are  thus  construed,  and  the  judg- 
ments or  orders  of  the  court  rendered  or  made  in  the  determina- 
tion of  controversies,  are  respected  and  obeyed.  xA.nd  will  not  the 
executive  department  do  it?  Will  it  refuse  in  any  instance?  It  will 
thus  be  seen  that  while  each  of  the  different  departments  of  the 
government  is  superior  to  the  others  in  some  respects,  yet  that  each 
is  inferior  to  others  in  other  respects,  and  it  is  always  difficult  to 
compare  things  which  are  wholly  unlike  each  other,  or  to  call  them 
equal.  Each  department  in  its  own  sphere  is  supreme.  But  each 
outside  of  its  own  sphere  is  weak  and  must  obey.  It  will  be  readily 
admitted  that  the  courts  cannot  control  any  executive  act  of  the  gov- 
ernor, or  any  executive  power  conferred  upon  him.  But  may  they 
not  control  ministerial  power  wherever  placed?  Is  not  ministerial 
power  inferior  to  judicial  power  always,  and  subject  to  judicial  con- 
trol ?    The  recipient  of  ministerial  power  exercises  no  judgment,  no 


146  MARTIN,   GOVERNOR,   V.    INGHAM.  §    3 

discretion,  but  is  simply  bound  to  obey  the  law,  under  a  given  state 
of  facts,  and  to  construe  this  law,  and  to  ascertain  these  facts,  are 
peculiarly  within  the  province  of  the  courts.  If  an  applicant  for  re- 
lief on  the  ground  of  refusal  to  exercise  or  the  wrongful  exercise  of 
ministerial  power  by  the  governor,  has  no  remedy  in  the  courts, 
then  he  has  no  remedy  at  all.  The  remedy  of  impeachment,  and  the 
remedy  of  subsequent  elections,  suggested  by  some  of  the  courts, 
may  be  a  remedy  to  the  public  in  general,  but  it  cannot  be  a  remedy 
to  an  individual  sufferer,  for  injuries  or  loss  in  person  or  to  his 
property.  In  the  case  of  Marbury  v.  Madison,  i  Cranch.  (U.  S.) 
137,  Chief  Justice  jMarshall  uses  the  following  language:  "The  very 
essence  of  civil  liberty  certainly  consists  in  the  right  of  every  indi- 
vidual to  claim  the  protection  of  the  laws  whenever  he  receives  an 
injury.  One  of  the  first  duties  of  government  is  to  afford  that  pro- 
tection." And  further  on  in  the  same  case,  p.  161,  after  stating  that 
the  courts  cannot  control  executive  discretion,  the  great  chief  justice 
uses  the  following  language:  "But  when  the  legislature  proceeds 
to  impose  on  that  officer,  (the  secretary  of  state  of  the  United 
States,)  other  duties;  when  he  is  directed  peremptorily  to  perform 
certain  acts ;  when  the  rights  of  individuals  are  dependent  on  the 
performance  of  those  acts, — he  is,  so  far,  the  officer  of  the  law ; 
is  amenable  to  the  law  for  his  conduct ;  and  cannot,  at  his  discretion, 
sport  away  the  rights  of  others."  In  the  case  of  Tenn.  R.  Co.  v. 
Moore,  36  Ala.  382,  the  following  language  is  used :  "All  this  is 
the  result  of  the  just  and  wholesome  principle  that  no  public  func- 
tionary, whatever  his  official  rank,  is  above  the  law,  or  will  be  permit- 
ted to  violate  its  express  command  with  impunity.  While,  therefore, 
it  is  true  that,  in  regard  to  many  of  the  duties  which  belong  to 
his  office,  the  governor  has,  from  the  very  nature  of  his  authority, 
a  discretion  which  the  courts  cannot  control,  yet  in  reference  to  min- 
isterial duties  imposed  upon  him  by  statute  which  might  have  been 
devolved  on  another  officer  if  the  legislature  had  seen  fit,  and  on 
the  performance  of  which  some  specific  private  right  depends,  he  may 
be  made  amenable  to  the  compulsory  process  of  the  proper  court  by 
mandamus."  In  the  case  of  Ferguson  v.  Earl  of  Kinnoul,  9  CI.  & 
I-'in.  290,  Lord  Brougham  uses  the  following  language:  "lUit  where 
the  law  neither  confers  judicial  power,  nor  any  discretion  at  all, 
but  requires  certain  things  to  be  done,  everybody,  whatever  be  his 
name,  and  whatever  other  functions  of  a  judicial  or  of  a  discretion- 
ary nature  it  may  have,  it  is  bound  to  obey."  Of  course  we  should 
always  j)rcsume  that  the  governor  intends  to  do  his  duty,  but  In- 
may  be  mistaken  as  to  the  law,  or  he  may  be  insufficiently  advised  as 
to  the  facts  ujxm  which  the  applicant  for  relief  founds  his  right 
(hereto,  and  there  is  no  way  prescribed  by  law  by  which  issues 
can  he  made  up  anrj  tried  before  the  governor,  as  issues  are 
made  up  and  tried  before  the  courts.     The  courts  are  created  for 


§    3  -TO    PUBLIC    OFFICERS.  I47 

the  express  purpose  of  trying  controversies,  while  the  other  depart- 
ments and  ministerial  officers  are  not.  It  is  alsp  claimed  that  if  the 
courts  may  control  the  ministerial  acts  of  the  governor,  and  may  also 
determine  which  are  ministerial  acts  and  which  are  not,  then  that 
the  courts  may  determine  everything,  and  obtain  complete  control 
over  the  executive  department,  including  the  governor.  It  must  be 
remembered  however,  that  all  controversies  must  be  determined 
somewhere,  and  that  the  courts  are  the  only  tribunals  created  by  the 
constitution  and  the  laws  for  the  special  purpose  of  construing  the 
constitution  and  the  laws,  and  of  determining  controversies  be- 
tween parties ;  and  the  power  to  determine  whether  a  given  power 
is  a  ministerial  power  or  not,  and  whether  an  applicant  for  relief 
in  any  particular  case  has  a  right  to  such  relief,  under  the  law  cre- 
ating such  power,  or  not,  comes  peculiarly  within  the  province  of  the 
courts.  And  a  determination  in  such  a  case  is  purely  judicial,  and  is 
one  of  the  things  for  which  courts  are  created,  and  they  could  not 
refuse  their  aid  in  such  cases  without  so  far  abandoning  their  duties, 
and  abdicating  their  jurisdiction.  As  to  the  question  whether  the 
courts  may  control  the  ministerial  acts  of  the  governor,  many  of  the 
cases,  cited  for  the  purpose  of  showing  that  they  cannot,  are  not 
applicable,  for  no  such  question  was  involved  in  the  facts  of  such 
cases.  For  instance,  in  the  case  of  A^icksburg  R.  Co.  v.  Lowry,  6i 
Miss.  102,  a  writ  of  mandamus  was  prayed  for  only  as  against 
the  state  treasurer,  and  no  relief  of  any  kind  was  sought  as  against 
the  governor.  In  the  case  of  Low  v.  Towns,  8  Ga.  372,  the  follow- 
ing language  is  used:  "If,  as  has  already  been  remarked,  it  was 
competent  for  the  legislature  to  impose  this  ministerial  duty,  of  issu- 
ing a  commission  to  a  clerk,  on  the  executive  officer  of  the  govern- 
ment, wholly  independent  of,  and  in  addition  to  the  duties  devolved 
upon  that  officer  by  the  constitution,  why  may  he  not,  when  the  per- 
formance of  this  ministerial  act,  so  required  by  the  law,  is  essential 
to  the  enjoyment  and  completion  of  individual  rights,  be  considered, 
quoad  hoc,  not  an  executive,  but  as  a  ministerial  officer,  and  there- 
fore liable  to  be  directed  and  compelled  to  perform  the  act  by  man- 
damus ?  Viewed  as  strictly  a  legal  question,  we  cannot  offer  any  sat- 
isfactory reason  why  he  should  not,  according  to  the  general  prin- 
ciples of  law."  The  writ  of  mandamus  asked  for  in  that  case  was 
refused  because  of  the  want  of  the  necessary  facts  to  entitle  the 
relator  to  it.  In  the  case  of  People  v.  Governor,  29  Mich.  320,  322, 
324,  an  application  was  made  for  a  writ  of  mandamus  to  compel  the 
governor  to  issue  a  certain  certificate  when  he  should  be  satisfied 
that  certain  work  had  been  done  in  conformity  with  the  law.  In  that 
case  the  following  language  is  used  in  the  opinion  of  the  court :  "If 
we  concede  that  cases  may  be  pointed  out  in  which  it  is  manifest 
that  the  governor  is  left  to  no  discretion,  the  present  is  certainly 
not  among  them,  for  here,  by  the  law  he  is  required  to  judge  on  a 


148  MARTIN,    GOVERNOR,    V.    INGHAM.'  §    3 

personal  inspection  of  the  work,  and  must  give  his  certificate  on 
his  own  judgment,  and  not  on  that  of  any  other  person,  officer,  or 
department.'"  In  the  case  of  Hartranft's  Appeal,  85  Pa.  St.  433, 
it  was  sought  to  compel  the  governor  to  disclose  state  secrets  be- 
longing onlv  to  the  political  department  of  the  government.  In  the 
case  of  State  v.  Governor,  25  N.  J.  Law,  331,  343,  344,  348,  a  writ 
of  mandamus  was  asked  for  to  compel  the  governor  to  issue  a  com- 
mission to  the  relator,  but  there  was  no  showing  made  that  the 
relator  had  ever  demanded  the  commission,  or  that  the  governor 
had  ever  refused  the  same,  and  the  court  held  "that  the  applicant 
upon  the  facts  disclosed,  is  not  entitled  to  the  relief  sought  for," 
and  also  held  that  the  court  was  "asked  to  direct  that  the  commis- 
sion be  issued  in  direct  conflict  with  the  plain  requirements  of  the 
act,"  which  of  course  could  not  be  done.  In  the  case  of  Mauran  v. 
Smith,  8  R.  I.  192,  222,  it  was  rightly  held  that  whether  the  court 
had  jurisdiction  over  any  act  of  the  governor  or  not,  still  that,  upon 
the  facts  of  that  case,  the  relator  was  not  entitled  to  the  relief 
sought.  These  cases  are  given  merely  as  illustrations  of  the  inappli- 
cability of  many  of  the  cases  cited  to  show  that  the  courts  have  no 
jurisdiction  to  control  the  ministerial  acts  to  be  performed  by  the 
governor.  On  the  other  side, "what  is  said  in  the  case  of  Chamberlain 
V.  Sibley,  4  Minn.  309  (Gil.  228)  as  to  the  power  of  the  courts 
to  control  ministerial  acts  of  the  governor,  is  only  a  dictum.  Upon 
the  whole,  however,  if  all  the  cases  cited,  except  such  as  necessarily 
included  the  question  whether  the  courts  may  in  any  case  control  the 
ministerial  acts  of  the  governor,  be  excluded,  and  if  only  such  cases 
be  considered  as  include  the  above  question,  then  not  only  reason, 
but  the  weight  of  authority,  we  think,  will  be  found  on  the  affirmative 
of  the  question.  And  certainly,  as  to  all  the  executive  officers,  ex- 
cept the  governor,  the  great  weight  of  authority,  state  and  federal, 
is  in  favor  of  the  theory  that  ministerial  acts  to  be  performed  by  an 
executive  officer  may  be  controlled  by  the  judiciary.  If  we  are  cor- 
rect in  our  conclusions,  then  we  have  jurisdiction  to  hear  and  deter- 
mine the  present  case  upon  its  merits.  We  have  jurisdiction  to  deter- 
mine whether  the  acts  of  the  governor  sought  to  be  controlled  in  the 
present  instance  are  ministerial  acts,  or  acts  of  some  other  kind  or 
character,  and  we  have  jurisdiction  to  determine  whether  the  facts 
of  the  present  case  authorize  the   relief  sought. 

We  are  really,  however,  considering  two  cases.  The  first  pre- 
sents to  us  the  f|uestion  whether  tlu'  judge  of  the  district  court 
at  rhambcrs  erred  or  not  in  granting  a  preliminary  or  temporary 
injutirtion,  an  injunction  pendente  lite.  The  other  case  is  mandanuis, 
brought  originally  in  this  coml ,  ;ir,(l  it  is  submitted  to  us  on  a  motion 
to  quash  the  allernative  writ,  and  the  ([uestion  jiresented  is  whether 
the  alternative  writ  .states  facts  sufficient  to  constitute  a  cause  of  ac- 
tion   in   mandamus,   and    within    the    jnrisdictinn   nf  this   court.      It 


'  §    3  'JO    PUBLIC    OFFICERS.  I49 

will  therefore  be  seen  that,  after  deciding  that  we  have  jurisdiction 
of  such  cases,  any  further  decision  in  either  case,  will  only  be  a 
decision  of  a  preliminary  or  interlocutory  character.  After  deciding 
that  we  have  jurisdiction,  then  the  remaining  questions  to  be  deter- 
mined are  whether  the  acts  of  the  governor,  in  the  organization  of 
the  new  counties,  are  ministerial  or  not,  and  whether  the  facts  stated 
in  either  case  are  sufficient  to  authorize  the  relief  sought.  In  the 
case  of  State  v.  Commissioners,  12  Kan.  441,  445,  decided  at  the 
January  term  of  this  court  in  1874,  it  was  held  that  the  acts  of  the 
governor  in  the  organization  of  new  counties,  under  the  statutes 
as  they  then  existed,  were  ministerial.  Since  that  time  the  statutes 
have  been  materially  changed^  in  many  particulars.  The  following 
provisions  are  new,  and  they  are  now  in  force:  "§  3.  That  whenever 
the  governor  shall  have  any  reason  to  believe  that  any  memorial, 
affidavits  in  the  census  enumeration  or  petition,  or  any  of  the  pro- 
ceedings required  in  section  one  of  this  act,  are  incorrect,  fraudulent 
or  untrue,  he  is  authorized  and  required  to  delay  or  refuse  to  issue 
his  proclamation,  and  to  institute  an  investigation  by  sending  three 
disinterested  householders  of  this  state  into  such  county,  to  ascertain 
the  truth  or  the  falsity  of  such  petition,  census,  memorial,  or  affida- 
vits, and  to  order  the  attorney  general  to  commence  proceedings  in 
the  name  of  the  state  against  any  and  all  persons  who  may  be  guilty 
of  a  violation  of  any  of  the  provisions  of  this  act,  or  of  any  and  all 
persons  who  may  conspire  together  for  the  formation  of  any  countv 
fraudulently  under  this  act."  Laws  1876,  c.  63,  §  3  ;  Comp.  Laws 
1885,  par.  1402.  "The  census  taker  shall  register  upon  the  said  du- 
plicate schedules,  opposite  the  names  of  each  legal  voter,  his  election 
for  temporary  location  of  county  seat,  which  shall  be  taken  by  the 
governor  as  a  definite  expression  of  said  voter,  unless  there  shall  be 
evidence  before  him  that  said  list  has  been  tampered  with  and 
changed."  Laws  1887,  c.  128,  §  i.  Now,  while  many  of  the  duties 
imposed  upon  the  governors  in  the  organization  of  new  counties, 
and  possibly  all  of  them  except  certain  ones  prescribed  by  the  new 
provisions  above  quoted,  are  still  ministerial,  yet  some  of  these  du- 
ties prescribed  by  these  provisions  are  certainly  not  ministerial. 
Some  of  them  relate  to  the  investigation  of  supposed  frauds,  and 
precisely  that  kind  of  fraud  which  we  are  asked  to  investigate  in  the 
injunction  case,  and  clearly  such  duties  are  not  ministerial.  Hence, 
as  some  of  the  duties  imposed  upon  the  governor  in  the  organiza- 
tion of  new  counties  are  ministerial,  and  some  of  them  are  not,  and, 
as  the  courts  will  not  by  mandamus  or  injunction  control  any  of  the 
acts  of  officers  except  such  as  are  purely  ministerial,  and  w^ill  not  con- 
trol even  those  whenever  any  other  plain  and  adequate  remedv  exists, 
it  follows  that  it  must  be  shown  clearly  and  conclusively  in  the  partic- 
ular case,  that  the  acts  of  the  governor  sought  to  be  controlled  are  not 
only  pure  ministerial  acts,  but  also  that  no  other  plain  and  adequate 


150  MARTIN,   GOVERNOR,   V.    INGHAM.  §    3 

remedy  exists.  Also,  as  we  have  already  stated,  all  presumptions  are 
in  favor  of  the  good  faith  and  honesty  of  the  governor.  It  will  not 
only  be  presumed  that  he  has  in  the  past  performed  honestly  all 
his  duties,  but  it  will  be  presumed  that  in  the  future  he  will  faith- 
fully and  honestly  perform  the  same ;  and  these  presumptions  will 
continue  until  it  is  clearly,  conclusively  and  affirmatively  shown 
otherwise ;  and,  in  favor  of  the  chief  executive  officer  of  the  state, 
these  presumptions  should  be  considered  as  of  the  strongest  char- 
acter ;  indeed,  much  stronger  than  any  kindred  presumptions  in  favor 
of  inferior  officers.  These  new  provisions  will  not  only  afifect  the 
actions  of  the  governor  in  many  cases,  but  may  also  affect  the  action 
of  the  courts  in  particular  cases.  Whenever,  in  the  organization  of 
new  counties,  the  governor  delays  or  neglects  to  act  upon  the  re- 
turn of  the  census  taker,  it  must  be  presumed  that  some  complaint 
or  notice  of  fraud  or  illegality  has  been  brought  to  the  notice  of  the 
governor,  and  that  he  delays  action  for  the  purpose  that  an  in- 
vestigation may  be  had ;  and  the  courts  should  not,  by  mandamus 
or  otherwise,  require  the  governor  to  act  until  it  is  affirmatively 
alleged^nd  shown  that  no  sufficient  reason  exists  for  such  delay.  No 
allegation  of  this  kind  is  to  be  found  in  the  alternative  writ  of  man- 
damus in  the  present  mandamus  case,  and  hence  the  alternative  writ 
is  defective  and  insufficient.  Also>  when  the  governor  is  about  to 
act  on  the  return  of  the  report  of  tRe  census  taker,  it  must  be  pre- 
sumed that  no  complaint  or  notice  of  fraud,  or  other  illegality  worthy 
of  attention,  has  been  brought  to  tTie  attention  of  the  governor:  and. 
before  the  courts  should  attempt  to  restrain  the  governor  from 
acting  on  such  return  or  report  it  should  be  affirmatively  alleged 
and  shown  that  a  complaint  of  fraud,  or  other  illegality  worthy  of  no- 
tice had  been  brought  to  the  attention  of  the  governor,  and  that  he 
then  ignored  and  disregarded  such  complaint.  Also,  as  a  general 
rule,  all  persons  in  cases  of  fraud,  or  other  illegality,  in  the  organi- 
zation of  counties,  have  a  plain  and  adequate  remedy  by  resorting 
to  the  investigation  provided  for  in  §  3,  above  quoted.  If  complaints 
of  fraud  or  illegality  have  been  made,  an  investigation  may  be  had 
at  once  under  that  section,  and,  in  the  investigation  that  ensues, 
all  ])artics  have  a  plain  and  an  adequate  remedy.  In  the  present 
mandamus  case  no  allegation  is  made  that  no  complaints  of  fraud 
or  illegality  were  brought  to  the  attention  of  the  governor,  or  that 
the  governor  is  not  delaying  for  the  purpose  that  an  investigation  may 
be  had  ;  hence  for  this  reason  the  alternative  writ  is  insufficient.  In 
the  injunction  case  no  allegation  is  made  that  any  fraud  or  illegali- 
ty, or  even  irregularity  of  any  kind  has  ever  been  brought  to  the 
attention  of  the  governor,  or  that  he  would  f^il  to  regard  the  same 
if  it  were  brought  to  his  attention ;  hence  the  petition  for  the  in- 
junction is  insufficient  for  that  reason.  If  the  fraud  and  other  ir- 
regularities  alleged    in   the   injunction   case,   had   been   brought   to 


§    3  TO  PUBLIC  OFFICERS.  I5I 

the  attention  of  the  governor,  and  he  asked  to  inaugurate  an  in- 
vestigation under  said  §  3,  he  would  undoubtedly  have  done  so. 
At  least,  it  must  be  so  presumed  in  the  absence  of  allegations  to  the 
contrary.  Before  parties  can  resort  to  the  courts  for  a  manda- 
mus or  an  injunction,  they  must  exhaust  their  other  remedies, 
provided  their  other  remedies  afe"plam  ancTladeqijiate'."  This,  the 
plaintiffs  in  the  two  cases  we  are  now  consTcTermg,  have  failed  to  do.' 
They  have  wholly  ignored  a  plain  and  adequate  remedy. 

The  motion  to  quash  the  alternative  writ  of  mandamus  will  be 
sustained,  and  the  order  of  the  judge  of  the  court  below  granting 
a  temporary  injunction,  will  be  reversed. 

All  the  justices  concurring. 

In  accord. — Harpending  v.  Haight,  39  Cal.  189;  Tennessee  R.  R.  Co. 
V.  Moore,  36  Ala.  380;  Chumasero  v.  Potts,  2  Mont.  242;  Gotten  v.  Ellis, 
7  Jones  (N.  Car.)  545;  State  v.  Governor,  5  Ohio  St.  528;  Magruder  v. 
Swan,  25   Md.  212;   Chamberlain  v.   Sibley,  4  Minn.  309. 

The  following  states  appear  to  hold  to  the  doctrine  that  Mandamus  lies 
to  the  governor  to  compel  the  performance  of  duties  not  of  a  political 
character  wherein  there  is  nothing  of  discretion,  and  which  duties  are  ex- 
pressly imposed  by  statute:  Alabama  (Tennessee  R.  R.  Go.  v.  Moore, 
36  Ala.  371)  ;  California  (Harpending  v.  Haight,  39  Cal.  189)  ;  Colorado 
(Greenwood  Land  Co.  v.  Routt,  17  Colo.  156)  ;  Kansas  (Martin  v.  Ingham, 

38  Kan.  641)  ;  Louisiana  (State  v.  Nichols,  42  La.  Ann.  209)  ;  Maryland 
(Groome  v.  Gwinn,  43  Md.  572)  ;  Montana  (Chumareso  v.  Potts,  2  Mont. 
242)  ;  Nebraska  (State  v.  Thayer,  31  Neb.  82)  ;  Nevada  (State  v.  Blasdell, 
4  Nev.  241)  ;  Nrii'  Hampshire  (Barnard  v.  Peoples  Ins.  Co.,  66  N.  H. 
400);  North  Carolina   (Gotten  v.  Ellis,  7  Jones   (N.  Car.)   S45). 

In  the  following  states  the  doctrine  obtains  that  as  to  all  official  duties, 
the  executive  of  the  state  is  entirely  removed  from  beyond  the  power  of 
the  courts:  Arkansas  (Hawkins  v.  Governor,  i  Ark.  571);  Arizona  (Board' 
T.  Wolfey,  22  Pac.  383)  ;  Florida  (State  v.  Drew,  17  Fla.  67)  ;  Georgia 
(Low  V.  Towns,  8  Ga.  360);  Illinois  (People  v.  Cullom,  100  111.  472); 
Indiana  (Horey  v.  State,  127  Ind.  588;  contra,  Grav  v.  State,  72  Ind.  567)  ; 
Maine  (In  re  Dennett,  32  Me.  508)  ;  Michigan  (People  v.  Governor,  29 
Mich.  320")  ;  Minnesota  (Rice  v.  Austin,  19  Minn.  103)  ;  Mississippi  (Vicks- 
burg,  etc.,  R.  R.  Co.  v.  Lowrev,  61   Miss.  102);  Missouri  (State  v.  Governor, 

39  Mo.  388)  ;  Nezu  Jersey  (State  v.  Governor,  i  Dutch.  331)  ;  Pennsylvania 
(Commonwealth  v.  Wickersham,  90  Pa.  St.  311)  ;  Rhode  Island  (Mauran 
V.  Smith,  8  R.  I.  192)  ;  Tennessee  (Turnpike  Co.  v.  Brown,  8  Baxt.  (Tenn.) 
490) . 

The  latter  doctrineJs-UB4oubtt£dlv  the  correct  as  well  as  the  safe  one.  It 
can  hardly  be  supposed  that  the  founders  of  our  State  designed  any  other 
legal  control  over  the  Chief  Executive  than  that  furnished  by  impeachment. 

In  a  few  of  the  states  other  state  officers  have  been  declared  to  be  be- 
yoiT^a^confror  bjrMarndamus  but  the  weight  of  authority  negatives  this  doc-, 
trine,  holding  that  the  courts  have  power  to  compel  the  performance  of 
ministerial  duties.  Ex  parte  Pickett,  24  Ala.  91  ;  Bryan  v.  Cattell.  15  Iowa, 
538;  State  v.  Johnson,  28  La.  Ann.  932;  People  v.  Hospital,  39  N.  Y.  S. 
158;   Houge  v.   Baker,  92  Tex.   58. 

The  rule  which  invariably  applies  to  these  cases  lies  in  the  determination 
of  whether  the  duty  sought  to  be  coerced  is  discretionary  or  purely  min- 
isterial. 


152  EX    PARTE    ECHOLS.  §    3 

5.     ^Mandamus  to  legislative  officers. 

Ex  PARTE  ECHOLS. 

1866.     Supreme  Court  of  Alabama.     39  Ala.  698,  88  Am.  Dec. 

749- 

By  the  court,  Byrd,  J. — lliis  is  an  application  by  a  member 
of  the  house  of  representatives  for  a  mandamus,  or  other  appropri- 
ate process,  to  be  issued.,  requiring  the  speaker  of  the  house  of  rep- 
resentatives to  cause  a  certain  "bill,  which  has  passed  said  house," 
to  be  sent  to  the  senate.  It  appears  from  the  application  that  the 
bill  is  "a  bill  to  be  entitled  "An  act  to  create  a  new  county  out  of 
the  portions  of  Macon,  Russell,  and  Chambers ;"  "that  the  bill  was 
regularly"  put  upon  its  passage,  on  the  14th  day  of  Feb.  1866,  in 
said  house,  and  the  vote  on  said  question  whether  said  bill  should 
pass  was,  on  said  last  named  day,  taken  in  the  house  by  yeas  and  na}s, 
nnd  stood  as  follows:  forty-seven  votes  for  its  passage,  and  twenty- 
two  against  its  passage  ;  that  the  speaker  of  said  house,  on  ascer- 
taining that  there  were  forty-seven  votes  for  the  passage  of  said 
bill  and  twenty-two  against  its  passage,  announced  and  decided 
on  said  last  named  day,  that  said  bill  was  lost,  and  had  not  passed, 
and  by  virtue  of  §  2  of  art.  2  of  the  constitution  of  the  state, 
said  bill  could  not  be  passed  by  any  number  of  votes  in  said  house 
less  than  sixt}'-seven  in  favor  of  its  passage ;  that  an  appeal  to  said 
house  was  thereupon  taken  from  the  decision  of  the  said  speaker. 
and  on  said  appeal  forty-five  members  voted  to  sustain  said  deci- 
sion and  thirty-five  voted  against  sustaining  said  decision ;  that 
the  decision  of  the  speaker,  and  those  who  voted  to  sustain  said 
decision  on  said  appeal,  was  induced  and  caused  solely  by  the  con- 
struction they  felt  it  their  duty  to  place  upon  said  section  of  the  con- 
stitution ;  and  that  by  reason  of  said  decision  of  the  speaker,  the  said 
bill  has  been  defeated  and  kept  from  the  senate." 

These  are  the  material  facts  submitted  by  the  speaker  in  a  written 
con.sent  and  admission  attached  to  the  application,  and  the  only  ones 
necessary  for  our  consideration  from  the  view  we  take  of  the  case. 
Whether  this  court  has  original  jurisdiction  to  issue  the  writ  of 
mandamus  in  any  case  similar  to  this  is  not  necessary  to  be  con- 
sidered. Nor  is  it  necessary  for  us  to  pass  on  the  question  whether 
the  petitioner  has  such  an  interest  in  the  subject  matter  as  entitles 
him  to  come  into  this  court  and  ask  its  aid  in  controlling  the 
speaker  of  the  house  of  representatives.  Rut  the  question  we  shall 
considfT  is,  whether  this  court  has  the  jtu-isdiction  to  control  the 
speaker  r)f  tlie  liouse  of  representatives  in  respect  to  the  matter 
complained  of. 

Thr    <;T)fTikcr   dfridcd    that    the    bill    had    not    ])asscd    by   a    vote 


'§3  TO    PUBLIC    OFFICERS.  153 

of  two-thirds  of  that  branch  of  the  legislature ;  and  an  appeal  was 
taken  from  that  decision  to  the  house,  and  the  house  sustained  the  de- 
cision of  the  speaker.  This  was  a  question  certainly  within  the  juris- 
diction  of  the  speaker  andTiouse  to  pass  upon,  and  is  not  a~mere  mi'ri"^ 
isterial  duty,  but  one  that  pertains  to  their  legislative  functions,  and  is 
dne~over  which  the  house  has  exclusive  jurisdiction.  No  other  de- 
partment of  the  government  can  revise  its  r.ction  in  this  respect  with- 
out a  usurpation  of  power. 

In  State  v.  Porter,  i  Ala..  688,  the  court  says :  "That  there  may 
be  acts  of  either  one  or  all  the  branches  of  the  legislature  united 
which  cannot  be  drawn  in  question  before  the  judiciary,  will  not  be 
denied.  Thus  either  house  may  elect  its  own  officers,  and  the  choice 
cannot  be  questioned  ;  nor  can  the  exercise  of  a  mere  political  duty 
by  the  legislature,  or  either  of  its  branches,  be  in  any  manner  con- 
trolled." Nor  is  there  anything  in  conflict  with  this  in  the  case 
of  E.r  parte  Pickett,  24  id.  91,  and  Coosa,  etc.  R.  Co.  v.  Aloore, 
36  id.  380,  or  in  any  case  decided  by  this  court. 

This  court  will  not  interfere  with  either  of  the  co-ordinate 
departments  of  the  government  in  the  legitimate  exercise  of  their 
jurisdiction  and  powers,  except  to  enforce  mere  ministerial  :.cts 
recjuired  by  law  to  be  performed  by  some  officer  thereof;  and  not 
then  if  the  law  leaves  it  discretionary  with  the  officer  or  the  de- 
partment. To  this  extent  and  no  further  do  the  decisions  of  the 
court  go  upon  this  branch  of  the  subject. 

In  the  case  of  the  United  States  v.  Guthrie,  17  How.  (U.  S.) 
304,  the  court  says :  "Thus  it  has  been  ruled  that  the  only  acts 
to  which  the  power  of  the  courts,  by  mandamus,  extends,  are  such 
as  are  purely  ministerial,  and  with  regard  to  which  nothing  like 
judgment  or  discretion  in  the  performance  of  his  duties  is  left  to 
the  officer;  but  that  wherever  the  right  of  discretion  or  judgment 
exists  in  him,  it  is  he,  and  not  the  courts,  that  can  regulate  the 
exercise."  See  also  Brashear  v.  Mason,  6  How.  (U.  S.)  92;  Ken- 
dall v.  Stokes,  12  Pet.  (U.  S.)  527;  Decatur  v.  Paulding,  14  id. 
497;  United  States  v.  Lawrence,  3  Dall.  (U.  S.)  42;  Life  and  Fire 
Insurance  Company  of  New  York,  v.  Adams,  9  Pet.  (U.  S.)  573; 
State  V.  Bowen,  6  Ala.  511  ;  Page  v.  Hardin,  8  B.  Alon.  (Ky.)  656; 
Marbury  v.  Madison,  i  Cranch  (U.  S.)  137;  Commonwealth  v. 
Commissioners,  32  Pa.  St.  223;  Ex  parte  ^Morris,  11  Gratt.  (Ya.) 
297;  Strong,  Petitioner,  20  Pick.  (Mass.)  493. 

We  have  examined  the  cases  referred  to  in  the  brief  of  the  coun- 
sel for  the  applicant,  and  find  none  of  them  in  conflict  with  the 
above.  It  seems  to  be  held  by  all  the  authorities  that  the  writ  of 
mandamus'calToiiry  isstle  to  some  officer  required  by  the  law  to  per- 
form some  mere  ministerial  act,  Or  to  a  judicial  officer  to  require  him 
to  take  action  ;  but  not  in  a  matter  requiring  judgment  or  discre- 
tion, to  direct  or  control  him   in  the  exercise  of  either.     Among 


)) 


154  STATE  EX  REL.  VAIL  V.  DRAPER  §  3 

all  the  cases  and  text  books  on  this  subject,  none  go  to  the  length 
of  laying  down  the  doctrine  that  the  speaker  of  the  house  of  rep- 
resentatives, or  a  legislative  body,  in  a  matter  arising  in  the  regular 
course  of  legislation  upon  which  he  is  called  to  decide,  can  be  con- 
trolled by  this  or  any  other  tribunal,  except  by  the  one  over  which 
he  presides ;  and  that  having  sustained  his  opinion  and  action,  this 
court  cannot  review  it.  To  do  so  would  be  in  violation  of  the  third 
article  of  the  constitution,  and  of  principles  well  established  and 
long  settled. 

Each  department  of  the  government  should  be  careful  not  to 
trench  upon  the  powers  of  others;  and  this  court  should  be  the 
more  so,  as  its  decisions  are  to  be  taken  as  the  measure,  in  the 
last  legal  resort,  of  the  powers  which  pertain  to  each  department 
thereof;  and  while  it  will  uphold  its  own  jurisdiction  and  powers, 
it  will  be  careful  not  to  usurp  any  that  appropriately  belong  to  either 
of  the  other  co-ordinate  branches  of  the  government. 

Neither  can  the  house  of  representatives  be  viewed  in  the  light 
of  an  "inferior  jurisdiction,"  within  the  meaning  of  the  second 
section  of  article  6  of  the  state  constitution ;  nor  does  the  speaker 
of  the  house  come  within  the  meaning  of  that  section  when  he  is 
acting  in  his  legislative  capacity,  and  not  as  a  mere  ministerial  offi- 
cer of  the  law. 

It  results  from  these  views  that  the  application  is  refused ;  and  so 
let  it  be  entered  of  record. 

Where  the  duty  imposed  upon  the  legislative  officer  is  wholly  ministerial, 
held  that  Mandamus  will  lie.     State  v.   Elder,  31   Neb.   169. 


6.     Trying  title  to  office. 

STATE   EX   REL.   VAIL   v.   DRAPER. 
1871.     Supreme  Court  of  Missourl     48  Mo.  213. 

Wagnek,  J.,  delivered  the  opinion  of  the  court. 

The  relator  asks  this  coiu-t  to  grant  a  peremptory  mandamus 
to  com]X'l  the  state  auditor  to  issue  a  warrant  in  his  favor  for  sal- 
ary as  judge  of  the  Fifteenth  Judicial  Circui^  for  the  fiscal  quarter 
enrling  on  the  30th  of  June,  187 1.  The  action  of  the  auditor  in  re- 
fusing to  draw  the  warrant  is  based  on  the  fact  that  the  official 
register  in  the  office  of  the  secretary  of  state  shows  that  .on  the 
14th  of  April,  187 1,  the  governor  of  this  state  commissioned  Louis 
V.  Diiuiing  to  be  judge  of  the  said  circuit. 

The  rpcord  in  the  case  as  made  up  by  the  pleadings,  shows  that 
both  Vail  and  Dinning  trace  their  title  to  office  under  and  through 


§    3  'it'     I'LliLlC    (JFl'lCliRS.  155 

the  general  election  held  in  1868.  At  that  election  they  were  both 
candidates  for  the  judgeship  in  the  Fifteenth  Judicial  Circuit.  The 
register  of  civil  officers  kept  in  the  office  of  the  secretary  of  state' 
^cTws  that  on  the  20th  day  of  April,  1869,  Governor  McClurg 
<?otnmissioned  James  H.  \^ail  (the  relator)  Judge  of  the  Fifteenth 
"Ctrcuit,  "it  appearing  to  him  that  he  was  duly  elected  on  the  3d  day 
dt  November,  1868.'"  Under  this  commission  Vail  qualified  and 
"TJTOceeded  to  discharge  the  duties  and  functions  of  the  office,  receiv- 
ing the  salary  and  the  emoluments  thereof,  and  has  ever  since  per- 
formed the  duties  of  the  same. 

On  the  14th  day  of  April,  187 1,  about  two  years  after  the  first 
commission  issued  to  \'ail.  Governor .  Brown  commissioned  Louis 
F.  Dinning  Judge  of  the  same  circuit,  "it  having  been  certified  by 
the  Hon.  Francis  Rodman,  Secretary  of  State,  that  he  was  duly 
d^eeted  November  3d,  1868."  It  thus  appears  that  there  is  a  contest 
in  the  Fifteenth  Circuit  as  to  who  is  the  rightful  judge  thereof. 
\\  ith  that  contest  we  have  nothing  to  do  in  this  proceeding,  as  the. 
right  to  an  office  cannot  be  determined  upon  an  application  for 
a~mandamus  directed  to  the  auditor  for  a  warrant  for  a  salary.  State 
v.^Mosely,  34  Mo.  375;  36  AIo.  70;  Winston  v.  Mosely,  35  ]\lo. 
146. 

No  parties  are  here  contesting,  and  the  only  question  for  us  to 
decide  is,  who  is  entitled  to  the  salary  as  the  case  is  now  presented  ? 
Which  of  the  parties  was  originally  entitled  to  the  commission  we 
do  not  know,  nor  are  we  at  liberty  to  give  an  opinion.  When 
Governor  McClurg,  acting  upon  evidence  which  he  doubtless  deem- 
ed satisfactory,  of  \'^airs  election,  issued  a  commission  to  him,  the 
executive  function,  so  far  as  commissioning  a  judge  for  that  cir- 
cuit was  concerned,  was  exhausted.  The  commission  invested  \  ail 
with  the  title,  and  was  prima  facie  evidence  of  his  right  to  the 
office.  Tfgave  him  the  possession,  and  he  could  only  be  deprived  of 
it  or  ousted  upon  due  process,  in  the  manner  prescribed  by  law. 
^fg"  exercised  its  duties  and  privileges  by  color  of  law,  and  that 
was  sufficient  until  some  other  person  legally  established  a  better 
and  a  higher  right. 

After  the  governor  had  issued  his  commission,  and  Vail  had 
qualified  and  been  inducted  into  office,  it  was  incompetent  for 
any  subsequent  governor,  upon  any  evidence  whatever,  toaftempf 
to  annul  or  to  revoke  that  commission  and  devolve  the  office  upon 
another.  It  is  true  that  Governor  Brown  acted  upon  the  certificate* 
'of  Mr.  Rodman,  the  former  Secretary  of  State,  and  the  evidence 
of  Dinning's  right  was  doubtless  to  him  conclusive ;  still,  after 
his  predecessor  had  acted  in  the  course  of  his  official  du:;ies  upon 
the  same  subject,  we  do  not  think  that  by  any  executive  action 
\^ail  could  be  ousted  or  deprived  of  his  prima  facie  right  to  the 
office.     Such  a  proceeding  would  be  the  exercise  of  judicial  rather 


156  STATE  EX  KEL.  VAIL  V.  DRAPER.  §  3 

than  executive  powers.  If  an  error  was  committed  in  the  issuance 
of  the  commission  to  Vail,  and  Dinning  was  the  party  fairly  and 
justly  entitled  to  the  office,  the  courts  furnished  the  proper  and 
appropriate  means  for  seeking  redress.  He  should  have  proceeded 
at  once  by  quo  warranto  and  have  settled  his  claims.  Tins  remedy 
the  law  points  out.  To  sanction  any  other  course  would  lead  to 
anarchy  and  disorder,  and  we  should  have  the  spectacle  of  two 
judges  holding  rival  courts,  each  claiming  obedience  and  authori- 
ty, and  both  deriving  their  power  from  identically  the  same  source. 
Such  a  state  of  things  ought  not  to  exist.  There  can  be  but  one 
lawful  judge,  and  the  law  has  made  ample  provision  to  ascertain 
and  determine  who  he  shall  be. 

In  the  case  of  St.  Louis  County  Court  v.  Sparks,  lo  Mo.__ii7, 
it  appears  that  Sparks  was  appointed  collector  of  the  revenue,  and 
after  the  expiration  of  his  term.  Wise  was  appointed  his  successor. 
Wise  qualified  and  entered  upon  the  performance  of  his  official  du- 
ties. Sparks  was  directed  to  make  a  settlement  with  the  court,  and 
deliver  possession  of  the  office  to  Wise.  This  he  refused  to  do, 
alleging  that  Wise  was  ineligible.  The  marshal  by  order  of  the  court 
forcibly  ejected  him.  On  this  state  of  the  facts  he  applied  to 
the  circuit  court  for  a  mandamus  to  compel  the  county  court  to 
restore  him  to  the  office  of  collector.  The  only  ground  on  which 
Sparks  claimed  the  office  Avas  that  he  held  until  his  successor  was 
appointed,  and  that  the  appointment  of  Wise  was  invalid,  he  being 
at  the  time  disqualified. 

Judge  Scott,  in  writing  the  opinion  of  the  court  says:  "It  has 
been  long  held  that  a  mandamus  may  be  used  to  restore  a  person 
to  an  office  to  which  he  is  entitled  (4  Bacon  Abr.  500,).  But  we 
are  not  prepared  to  say  that  this  was  a  proper  case  for  the  inter- 
ference of  the  circuit  court  by  mandamus.  A'^arious  considerations 
incline  us  to  this  opinion.  The  office  was  already  filled  by  one  who 
was  a  de  facto  officer  at  least ;  and  it  appears  to  l)e  the  law  that  when 
an  office  is  filled  by  one  who  is  in  by  color  of  right,  a  mandamus  is 
r.cvcr  issued  to  admit  another  person,  the  proper  remedy  being  an 
information  in  the  nattire  of  a  quo  warranto,  People  v.  Corporation 
r)f  New  York,  Johns.  Cas.  CN.  Y.)  79;  Angel  &  Ames  Cor.  565; 
King  V.  Mayor  of  Colchester,  2  Durnf.  &  E.  (K.  B.)  259.  It  would 
not  be  just  that  Wise's  right  to  the  office  should  be  determined  on 
a  proceeding  to  which  he  was  no  party.  He  was  the  proper  person 
to  vindicate  his  own  rights,  and  a  quo  warranto  was  the  proper 
mode  under  the  circumstances  to  try  the  validity  of  his  appoint- 
ment." 

Now  it  is  certain  that  Vail  was  a  dc  facto  officer,  that  he  was  in 
by  colr)r  of  right  at  least,  and  when  the  commission  was  issued 
to  Dinning.  \'ail  was  no  party  to  it.  and  had  no  opportunity  to  be 
heard.     Wc  may  repeat  the  language  of  Judge  .Scott,  and  sax   that 


§    3  TO    PUBLIC    OFFICERS.  157 

it  would  not  be  just  that  Vail's  right  to  the  office  should  be  deter- 
mined on  a  proceeding  to  which  he  was  no  party.  He  was  the 
proper  person  to  vindicate  his  own  rights,  and  a  quo  zvarranto  was 
the  proper  mode  under  the  circumstances  to  try  the  validity  of  his 
election  and  commission. 

The  auditor  was  bound  to  take  notice  that  there  was  no  claim 
to  the  office  set  up  by  either  Vail  or  Dinning  other  than  was  de- 
rived under  the  election  of  1868;  that  Governor  McClurg  coinmis- 
sioned  Vail  as  having  been  legally  elected  at  that  time,  and  that 
Vail  qualified  and  performed  the  duties  of  the  office,  and  drew 
his  salary  therefor;  in  other  words,  that  he  was  de  facto  the  judge, 
holding  by  color  of  right,  and,  as  such,  entitled  to  his  salary  until 
ousted  upon  proper  proceedings. 

This  opinion  is  strictly  limited  to  the  case  now  made,  and  can 
have  no  bearing  on  any  question  as  to  a  contest  between  the  parties 
when  their  rights  are  presented  for  adjudication. 

J[il_mv_0£inion  aperemptory  writ  should  issue.  All  of  the  other 
judges  concur.  ~  '         ~' 

See  also  Ex  parte  Lusk,  82  Ala.  519;  Mannix  v.  State,  115  Ind.  245; 
State  V.  Thompson,  36  Mo.  70;  State  v.  Camden,  42  N.  J.  L.  335;  Meredith 
V.  Supervisors,  50  Cal.  433 ;  Morles  v.  Watson,  60  Mich.  415 ;  State  v. 
Sherwood,  15  Minn.  221;  State  v.  Taafife.  25  Mo.  App.  567;  People  v.  N. 
Y.  Asylum,  122  N.  Y.  190;  Duane  v.  McDonald,  41  Conn.  517;  Queen  v. 
Derby,  7  Ad.  &  E.  419;   King  v.   Winchester,  7   Ad.  &  E.  215. 

Allowed  merely  for  the  purpose  of  swearing  in  a  claimant  to  oflfice.  Peo- 
ple V.  Straight,   128  N.  Y.  545. 

To  compel  proper  canvassing  of  election  returns.  Ellis  v.  Commissioners 
of  Bristol,  2  Gray  (Mass.)  370;  State  v.  Bailey,  7  Iowa,  390;  People  v. 
Scheilleim,  95  N.  Y.  124;  State  v.  Berg,  76  Mo.  136;  State  v.  Grace,  83 
Wis.  295;  Brown  v.  Commissioners,  38  Kan.  436;  State  v.  Van  Camp,  36 
Neb.  91 ;   Dalton  v.   State,  43   Ohio.    St.   652 . 

In  a  number  of  states  the  doctrine  that  Mandamus  will  not  He  to  try 
title  to  office,  has  been  expressly  repudiated  on  the  theory  that  quo  warranto 
is  not  an  adequate  remedy  since,  though  it  may  remove  the  incumbent, 
it  will  not  seat  the  relator.  Lindsay  v.  Luckett,  20  Tex.  516;  Harwood  v. 
Marshall,  9  Md.  83;  Putnam  v.  Langley,  133  Mass.  204;  Strong,  Petitioner, 
37  Mass.  484.  m 

If  the  incumbent  is  made  a  party  to  the  proceedings,  it  would  seem  that 
there  is  much  merit  in  the  above  doctrine.  Much  will  depend,  of  course,  on 
the  extent  of  the  order  made  in  quo  warranto;  in  some  states  such  order 
includes  the  induction  of  the  successful  claimant  into  the  office. 


158  ELISHA    STRONG,    PETITIONER,    IN    RE.  §    3 

7.     Correcting  amotion  from  public  office. 

ELISHA  STRONG,  PETITIONER,  In  re. 
1838.  Supreme  Judicial  Court  of  Massachusetts.  37  Mass.  484. 

Morton,  J.,  delivered  the  opinion  of  the  court. 

Two  questions  arise  upon  this  application.  First,  was  the  peti- 
tioner duly  elected  and  entitled  to  a  certificate  of  his  election?  Sec- 
ond, if  so,  has  he  resorted  to  the  proper  remedy  for  redress? 

In  the  examination  of  these  questions  we  have  looked  directly  to 
their  legal  merits.  Forttmately  we  have  not  been  diverted  from  this 
object,  by  any  matters  of  form  or  technical  difficulties.  All  parties 
interested  have  been  duly  notified  and  had  full  opportunity  to  be 
heard.  The  case  has  been  thoroughly  investigated,  and  ably  argued 
on  both  sides.  The  petitioner  has  stated  his  claim  with  sufficient 
clearness  and  particularity ;  and  the  answers  of  the  examiners  ad- 
mits or  states  all  the  facts  necessary  to  a  correct  decision.  We  shall 
therefore  proceed  immediately  to  the  main  questions,  without  taking 
further  notice  of  the  objections  as  to  matters  of  detail  in  the 
petition  or  answer. 

I.  Was  the  petitioner  duly  elected  a  county  commissioner?  If  he 
was,  there  is  no  doubt  that  he  was  entitled  to  the  usual  evidence  of 
the  fact. 

(The  court  concluded  that  the  evidence  clearly  showed  the  election 
of  petitioner.) 

But  it  has  been  contended  for  the  respondents,  that  the  petitioner 
has  mistaken  his  remedy,  and  that  mandamus  will  not  lie.  It  vv;as 
said  that  his  appropriate  remedy^.if.Jie  has  any,  is  by  quo  zvarranto, 
and  not  by  mandamus,  or  at  any  rate  that  the  q\io  warranto  should 
precede  the  mandamus. 

In  every  well  constituted  government,  the  highest  judicial  au- 
thority must  necessarily  have  a  supervisory  power  over  all  inferior 
or  subordinate  tribunals,  magistrates,  and  all  others  exercising  pub- 
lic authority.  If  they  commit  errors,  they  wih  correct  them.  If 
they  refuse  to  perform  their  duty,  it  will  compel  them.  In  the  for- 
mer case  by  writ  of  error,  in  the  latter  by  mandamus.  And  gener- 
ally in  all  cases  of  omissions  or  mistakes,  where  there  is  no  other 
a(lcf|uate  s])ccific  remedy,  resort  may  be  had  to  this  high  judicial 
writ.  It  not  only  lies  to  ministerial,  but  to  judicial  officers.  In  the 
former  case,  it  contains  a  mandate  to  do  a  specific  act,  but  in  the  lat- 
ter only  to  afljudicate,  to  exercise  a  discretion,  upon  a  particular 
subject.     Springfield  v.  Commissioners,  10  Pick.  (Mass.)  244. 

Mdiiclainits  is  the  pro^r  proccSjS^JqrrcjJqriii^  a  person  to  an  of- 
fice from  which  he  has  bccji  vujustlv  removed.  White's  Case,  2  T.d. 
Raym.  (K.  I'.)  959,  1004;  Regiria'vn^jaihes,  2  Ld.  Raym.  (K.  B.) 


,§3  TO    PUBLIC    OFFICERS.  I59 

1265;  Rex  V.  Chancellor,  ibid  1334;  Rex  v.  London,  2  T.  R.  (K.  B.) 
177;  Rex  V.  Field,  4  T.  R.  (K.  B.)  125.  So  also  it  lies  to  admit 
anyone  to  an  office,  a  service  or  a  franchise  from  wliich  he  is  unlauP 
futly'Yx eluded.  6  Dane  Abr.  326;  Rex  v.  Surgeon's  Company,  2 
Burr.  (K.  B.)  892 ;  Rex  v.  Barker,  3  Burr.  1265 ;  (K.  B.)  S.  C.  i  W. 
Bl.  300;  Rex  V.  Bedford  Level  Cor.,  6  East  (K.  B.)  356;  Rex  v. 
York,  4  T.  R.  (K.  B.)  699,  and  5  T.  R.  (K.  B.)  66. 

^^ut  it  is  strongly  argued  by  the  respondent's  counsel,  that  inas- 
much as  the  oiTicc.  claimed  by  the  petitioner  is  now  filled  by  another, 
who  can  be  removed  only  by  a  quo  zvarranto,  a  mandamus  will  not 
iTeT  "And,  certainly,  many  of  the  authorities  cited  by  them,  support 
the  position,  that  a  mandamus  will  not  lie  to  place  any  one  in  an 
office  already  filled  by  another,  until  the  incumbent  has  been  removed 
by  a  quo  zvarranto.  The  case  from  3  Johns.  Cas.  (N.  Y.)  79,  People 
V.  New  York,  is  directly  in  point.  The  court  there  say,  that  "where 
the  office  is  already  filled  by  a  person  who  has  been  admitted  and 
sworn,  and  who  is  in  by  a  color  of  right,,  a  mandamus  is  never  is- 
sued to  admit  another  person."  "The  proper  remedy  in  the  first  in- 
stance, is  by  an  information  in  the  nature  of  a  quo  warranto,  by 
which  the  rights  of  the  parties  may  be  tried." 

But  notwithstanding  the  weight  and  respectability  of  this  and  the 
other  authorities  cited,  there  are  certainly  very  many  the  other  way ; 
of  which  the  case  of  Dew  v.  Judges  of  the  Sweet  Springs  District 
Court,  3  Hen.  &  M.  (Va.)  i,  is  one.  Dew  applied  for  a  mandamus 
to  the  judges,  to  admit  him  to  the  office  of  clerk.  It  was  objected 
among  other  things,  that  the  office  was  already  filled,  and  the  only 
remedy  was  by  a  q\io  zvarranto  against  the  incumbent.  But  all  of 
the  judges  of  the  Supreme  Court  of  Virginia  "agreed  clearly,  that 
mandamus  was  the  best  remedy."  See  also  6  Dane,  335,  and  the 
cases  there  cited.  Mr.  Dane,  with  whom  we  concur,  says,  "On  the 
whole  the  authorities,  English  and  American,  are  much  in  favor  of 
the  mandamus,  especially  the  more  modern  cases." 

But  the  cases  relied  upon  by  the  respondents,  if  in  no  wise  shaken 
or  overruled,  are  clearly  distinguishable  from  the  one  before  us,  and 
may  stand  as  sound  law,'  and  yet  f6rm  no  obstacle  to  the  petitioner's 
application.  The  cases  referred  to  were  applications  to  be  admitted 
to  an  office.  The  petitioner  only  seeks  for  a  certificate  of  his  elec- 
tion. This,  if  he  obtains  it,  will  not  necessarily  oust  the  incumbent 
'^of  give  the  petitioner  possession  of  the  office.  For  these  purposes  he 
may  still  have  to  resort  to  a  quo  zvarranto,  and  possibly  before  he  can 
get  qualified  to  another  mandamus.  Two  processes  may  be  neces- 
sary to  enable  the  petitioner  to  get  possession  of  the  office,  the  one  to 
establish  the  legality  of  his  own  election,  the  other  to  set  aside  that 
of  the  incumbent.  They  are  independent  of  each  other.  Both  might 
have  been  applied  for  at  the  same  time  and  proceeded  pari  passu. 
Had  the  petitioner  first  caused  the  incumbent  to  be  removed,  by  a 


l60  ELISHA    STRONG,    PETITIONER,    IN    RE.  i;    3 

quo  zi'arraufo,  still,  without  the  evidence  of  his  own  election,  he  could 
not  enter  into  the  office.  So  that  if  a  mandamus  be  now  issued  and 
complied  with,  he  may  still  be  obliged  to  resort  to  other  legal  pro- 
ceedings before  he  can  get  regularly  inducted. 

The  King  v.  The  Mayor,  etc.,  of  York,  4  T.  R.  (K.  B.)  699,  and 
5  T.  R.  (K.  B.)  66.  is  analogous  to  the  case  at  bar.  An  election  of  a 
recorder  of  the  City  of  York  was  holden,  and  a  certificate  was  duly 
given  to  Sinclair  that  he  was  elected.  The  certificate  was  to  be  pre- 
sented to  the  King,  for  the  purpose  of  obtaining  his  approbation  of 
the  election.  Withers,  the  other  candidate,  applied  for  a  mandamus 
to  the  corporation  to  give  him  a  certificate,  he  having,  as  he  alleged. 
a  majority  of  the  legal  votes,  and  his  opponent  having  gained  the 
election  only  by  the  votes  of  persons  not  qualified  to  vote.  An  alter- 
native mandamus  issued,  and  afterwards,  the  return  to  that  one  being 
insufficient,  a  peremptory  one  was  ordered.  Many  other  cases  to 
the  same  eflfect  might  be  cited,  but  without  a  further  reference  to 
the  authorities,  we  are  clearly  of  the  opinion  that  a  mandamus  is  the 
proper  remedy^  in  this  case. 

We  are  aware  that  this  is  not  a  writ  of  right,  but  grantable  at  the 
discretion  of  the  court;  Rex  v.  Commissioners  of  Excise,  2  T.  R. 
(K.  B.)  385;  that  inasmuch  as  it  is  final  and  cannot  be  revised  on 
error  or  otherwise  the  court  will  proceed  with  great  caution  in  the 
exercise  of  so  high  a  jurisdiction;  Selwyn's  N.  P.  (6th  Ed.)  1062; 
I  Chit.  Gen.  Prac,  791 ;  and  that  they  will  not  grant  it,  where  there 
is  another  adequate  specific  remedy,  i  Chit.  Gen.  Prac.  790 ;  Rex 
V.  Chester,  i  T.  R.  (  K.  B. )  396;  Rex  v.  Canterbury,  8  East  (K.  B.) 
219.  But  we  have  no  doubt  that  the  present  is  a  proper  case  for  the 
exercise  of  our  discretion ;  and  that  to  refuse  to  grant  the  writ  would 
be  doing  palpable  injustice  to  the  petitioner,  and  defeating  the  will 
of  a  majority  of  the  voters  of  the  county,  clearly  manifested  by  their 
votes,  duly  and  legally  evidenced  before  the  proper  tribunal.  No 
other  remedy  can  reach  the  evil.  Although  a  quo  warranto  might 
remove  the  illegal  occupant,  it  could  not  put  the  legal  officer  in  his 
place.  No  civil  action  could  be  maintained  by  the  petitioner,  be- 
cause there  is  no  reason  to  doubt,  that  the  examiners  acted  bona  fide. 
and  with  a  sincere  desire  to  perform  their  duty  correctly  and  legally. 
And  if  it  could,  it  would  be  a  very  imperfect  and  partial  remedy. 

It  cannot  be  maintained  that  the  decision  of  the  examiners  was 
an  act  within  their  legal  discretion.  Whether  their  determinati(Mi 
as  to  the  reception  or  rejection  of  returns,  would  be  deemed  a  judi- 
cial decision,  may  well  be  doubted.  P)Ut  nothing  can  be  clearer  than 
that  the  counting  the  votes,  and  ascertaining  the  majorities  and  giv- 
ing tlic  certificates  of  the  resultj  are  mere  ministerial  acts.  .Thev_ 
li.-iv.-  no  discretion  in  determining  wItTcTi  of  the  candidates  shall  be 
it  must  be  the  result  of  pure,  inflexible  mathematical  calcu- 
l;ilii.n. 


§    3  TO    PUBLIC    OFFICERS.  l6l 

We  are  therefore  all  of  the  opinion,  that  the  petitioner,  in  first 
seeking  to  have  the  validity  of  his  own  election  inquired  into,  pur- 
sued a  wise  and  legal  course,  that  the  proper  remedy  is  by  manda- 
mus, and  that  justice  clearly  requires  that  such  a  writ  be  issued. 
But  the  usual,  if  not  the  invariable  practice  is,  in  the  first  instance  to 
grant  it  in  the  alternative  form,  giving  the  examiners  a  further  op- 
portunity, either  to  give  the  certificate  or  to  return  the  reasons  for 
refusing  it.  As  the  case  has  been  fully  heard,  they  will  doubtless 
adopt  the  first  branch  of  the  alternative,  unless  facts  or  reasons  oc- 
cur to  them  which  have  not  been  presented  to  the  court. 

Alternative  mandamus  ordered. 

See  also,  Ex  parte  Lusk,  82  Ala.  519;  Johnson  v.  Mann,  77  Va.  265; 
Madison  v.  Korbly,  2>-  Ind.  74;  Doyle  v.  Raleigh,  89  N.  Car.  133;  Singleton 
V.  Commissioners,  2  Bay  (S.  Car.)  105;  State  v.  Watertown,  9  Wis.  254; 
St.  Louis  County  Court  v.  Sparks,  10  Mo.  117;  Metsker  v.  Nealey,  41  Kan, 
122;   Rex  V.   London,  2  Term   R.   177. 

Contra,    State    v.    Dunlap,    5    Mart.    (La.)    271.  " 


PEOPLE  EX  REL.  YOUNG  v.  STRAIGHT,  CLERK. 

1891.     Court  of  Appeals  of  New  York,     128  N.  Y.  545, 
28  N.  E.  762. 

Application  for  a  mandamus  by  the  people  ex  rel.  M.  A.  Young, 
to  compel  Chas.  Straight,  clerk  of  the  village  of  Wellsburg,  to  ad- 
minister to  him  the  oath  of  office.  Mandamus  granted,  and  the  re- 
spondent appeals. 

Per  Curiam. — The  appellant  has  refused  to  administer  the  oath 
of  office  to  the  respondent,  and  raises  the  question  of  the  right  to 
compel  him  to  administer  it.  The  theory  of  his  case,  apparently,  is 
that  in  some  way  his  administration  of  the  oath  of  office  would 
amount  to  a  decision  as  to  the  respondent's  title  to  the  office,  and, 
a?  he  denied  that  there  was  any  legal  election  of  the  relator,  he  could 
not  be  compelled  to  take  and  to  file  his  oath.  Bujt  that._is-Jiat_sa.-  By 
tlie  provisions  of  the  act  under  which  this  village  was  incorporated, 
every  person  elected  or  appointed  to  office  is  required  to  take  and 
file  with  the  clerk  of  the  village  an  oath  of  office.  By  an  ordinance 
of  the  board  of  trustees  of  the  village,  authority  was  conferred  upon 
the  clerk  to  administer  said  oath  of  office.  If  applied  to  for  that 
purpose,  he  was  not  called  upon  to  decide  as  to  the  legality  of  the 
.applicant's  election  or  appointment ;  but,  in  his  ministerial  capacitv, 
he  was  obliged  to  administer  the  oath  of  office,  if  prima  facie  it 
appeared  that  the  individual  desiring  to  be  sworn  had  the  greatest 
number  of  votes  at  the  charter  election.     Perhaps,  too,  the  clerk 


l62  CITY   OF    KEOKUK   V.    MERRIAM.  §    3 

might  refuse  it  if  the  person  was  known  to  be  ineligible.  At  this 
election,  there  were  136  votes  vast,  66  were  for  the  opposing  candi- 
date, O'Brien;  66  for  "Morris  A.  Young";  i  was  for  "Morris 
Young";  i  was  for  M.  A.  Young;  i  was  defective;  and  i  was  blank. 
If  the  68  ballots  bearing  the  name  of  Young  were  legal  ballots  for 
the  relator,  Morris  A.  Young,  then  he  had  received  a  majority  of 
the  votes  for  the  office.  Whether  the  votes  given  for  "Morris 
Young",  and  "M.  A.  Young",  should  be  counted  for  the"reTatcJrwa^ 
not  a  question  for  the  clerk  to  pass  upon  when  Young  applied  to  him 
to  administer  the  oath  of  office.  It  was  sufficient  that  the  return 
presumptively  showed  the  relator's  election.  Thereupon  he  was  en- 
titled to  have  the  proper  oath  administered  to  him,  in  order  that  he 
might  be  in  a  position  to  assert  his  legal  rights.  Upon  the  question 
of  the  propriety  of  granting  the  peremptory  writ  of  mandamus,  it 
is  sufficient  to  say  that  as  by  the  paper  in  the  clerk's  possession, 
signed  by  a  majority  of  the  inspectors  of  the  election7 sTfeturn "was 
made  showing  that  a  majority  of  the  ballots  was  for  the  candidate 
named  Young,  it  presumptively  showed  his  election,  and  it  was  the 
duty  of  the  clerk  to  administer  the  oath  which  the  statute  requires 
every  officer  to  take  and  file.  It  is  not  material  that  the  inspectors 
did  not  make  a  certificate  as  to  Young's  election  to  the  office.  They 
did  sign  a  paper  showing  the  whole  number  of  votes  for  each  person 
voted  for,  and  that,  as  between  the  candidates  O'Brien  and  Young, 
a  majority  were  for  Young.  That  paper  the  clerk  had  possession  of. 
There  was  no  denial  of  material  facts  alleged  or  established  by  the 
relator  as  to  the  result  of  the  election  appearing  from  the  paper 
filed  with  the  clerk,  or  concerning  his  identity,  and  hence  the  issu- 
ance of  the  writ  of  mandamus  to  compel  the  clerk  to  do  his  duty 
was  perfectly  proper.  The  order  appealed  from  should  be  aflfifmed 
with  costs.    All  concur. 


8.     To  obtain  possession  of  books  and  paraphernalia  of  office. 

CITY  OF  KEOKUK  v.  MERRIAM. 

1876.     Supreme  Court  of  Towa.     44  la.  432. 

The  plaintiff  showed  in  its  petition  in  substance  that  the  defend- 
ant was  clerk  of  the  city  council  of  Keokuk,  and  that  by  ordinance 
of  ';aid  city  it  was  made  his  duty  to  act  "as  collector  of  said  city,  and 
keep  appropriate  books ;  that  in  the  discharge  of  his  duties  as  said 
collector  he  kept  a  cash  book ;  that  liy  ordinance  it  was  _prQ.Yided 
that  the  mayor  should  have  general  supervision  of  all  the  city  offi- 
cer.s,  and  shr)uld.  as  often  as  he  deemed  necessary,  examine  into  the 


§    3  TO  PUnLIC  OFFICERS.  163 

condition  of  their  respective  offices,  the  books,  papers  and  records 
therein;  that  the  mayor  deemed  it  his  duty  to  examine  into  the  con- 
dition of  the  office  of  the  cleric  and  the  books  and  the  records  there- 
in, and  demanded  of  the  defendant  the  said  cash  book,  and  that  1;he 
defendant  refused  to  allow  the  mayor  to  examine  the  said  cash  book. 

The  plaintiff  prayed  in  his  petition  for  a  writ  of  mandamus  com- 
manding the  dfeferrdant  to  turn  over  to  the  plaintifif  the  said  cash 
book,  and  allow  the  mayor  and  city  council  free  access  to  the  books, 
papers  and  records  of  his  office. 

The  defendant_ answered,  averring  in  substance,  that  after  the. 
commencement  of  this  action,  he  resigned  his  office,  and  that  his 
resignation  was  accepted ;  .that  one  Curtis  had  been  elected  and 
qualified  as  clerk ;  that  he  had  turned  over  to  Curtis  all  the  books  and 
papers  pertaining  to  his  Qffice ;  that  he  had  never  withheld  from  the 
constitutional  authorities  of  said  city  of  Keokuk  any  cash  book  which 
said  city  had  a  right  to  investigate ;  that  he  was  not  amenable  to  the 
proceedings  in  mandamus,  because  the  plaintiff  had  an  adequate 
remedy  by  replevin  ;  that  the  city  of  Keokuk  had  no  authority  to  pro- 
vide that  the  clerk  of  the  city  council  should  act  as  collector ;  and 
that  since  he  had  passed  out  of  office,  the  city  council  had  made  a  full 
settlement  with  him  and  paid  him  the  balance  due  him. 

The  plaintiff  demurred  to  so  much  of  the  answer  as  set  up  the  de- 
fendant's resignation,  and  to  so  much  as  alleged  that  plaintiff  had 
an  adequate  remedy  by  replevin. 

The  defendant  moved  to  strike  the  demurrer  from  the  files,  be- 
cause the  same  was  not  filed  in  time ;  which  motion,  so  far  as  the 
record  shows,  was  not  passed  or  ruled  on. 

The  court  sustained  the  demurrer  to  which  the  defendant  ex- 
cepted. 

The  court  then  made  the  following  finding  and  order:  "I  find  it 
was  the  duty  of  B.  S.  Merriam,  as  clerk  of  the  city  of  Keokuk,  to 
keep  an  account  of  the  receipts  of  the  delinquent  taxes,  and  the  pay- 
ments of  redemptions.  Also  an  account  of  the  payment  to  pur- 
chasers at  tax  sales  of  real  estate,  and  that  the  book  in  question  is 
the  book  in  which  those  accounts  were  kept  by  the  defendant,  as 
clerk  of  the  council  and  the  book  also  contains  a  cemetery  account, 
and  is  the  book  from  which  was  copied  the  cemetery  account,  copied 
in  this  book,  marked  'Exhibit  B',  and,  being  the  book  showed  by  Mr. 
Merriam  to  the  mayor  and  finance  or  investigating  committee,  and 
shown  in  part,  and  he  refused'to  deliver  the  same;  this  demand  and 
refusal  was  before  the  commencement  of  this  suit. 

"It  is  therefore  ordered  and  adjudged  by  this  court,  that  defendant 
B.  S.  Merriam  be  commanded,  and  is  hereby  commanded*,  to  deliver 
said  book  to  the  clerk  of  the  city  council  of  said  city  of  Keokuk, 
^vithin  forty  days  from  this  date. 

The  court  further  orders  that  said  books  be  presented  to  this  court 


164  CITY  OF   KEOKUK   V.    MERRIAM.  §    3 

at  the  next  term  thereof,  for  such  other  order  as  the  court  may  then 
make,  and  that  defendant  pay  costs  of  this  proceeding."  Defendant 
appeals. 

Adams,  J. — I.  The  appellant  assigns  as  the  first  error,  the  over- 
ruling of  the  motion  to  strike  the  demurrer  from  the  files.  But  as 
the  record  shows  no  ruling  upon  the  motion,  we  must  presume  it 
was  waived. 

II.  It  is  claimed  that  the  court  erred  in  sustaining  the  demur- 
rer. The  part  of  the  answer  referred  to  showed  the  defendant's 
resignation,  and  the  election  and  qualification  of  his  successor.  Such 
facts  alone  would  not  constitute  a  defense.  If  the  defendant  still 
withheld  the  books  of  the  city,  he  was  omitting  to  perform  a  duty 
which  the  law  imposed  upon  him. 

In  one  view,  the  averments  as  to  his  resignation  and  the  election 
and  qualification  of  his  successor  were  proper.  They  were  followed 
by  an  averment  that  he  had  turned  the  books  of  his  office  over  to  his 
successor.  If  his  averments  as  to  his  resignation  and  the  election 
and  qualification  of  his  successor  were  to  be  taken  simply  as  showing 
that  he  had  a  successor,  and  as  introductory  to  showing  that  he  had 
turned  the  books  over  to  his  successor,  we  should  think  the  court 
erred  in  sustaining  the  demurrer  to  that  part  of  the  answer ;  but  the 
averments  are  all  made  and  numbered  in  separate  subdivisions  of 
the  answer ;  and  we  infer  from  appellants  argument  that  he  relied 
upon  the  fact  of  his  resignation  as  a  sufficient  defense  of  itself. 

Tlie  other  portion  of  the  answer  demurred  to  is  the  statement  that 
the  plaintiff  had  an  adequate  remedy  by  replevin.  We  think  such 
remedy  would  not  be  adequate.  If  the  books  could  not  be  found, 
the  plaintiff  could  only  have  obtained  judgment  for  their  value,  and  it 
might  have  been  impossible  to  show  their  value.  We  should  deem 
it  very  unsafe  to  hold  that  where  a  municipal  officer  conceals  or 
withholds  the  books  of  the  corporation,  possibly  to  cover  his  own  de- 
faults, the  only  remedy  of  the  corporation  is  by  replevin.  We  do  not 
understand  that  it  is  claimed  by  the  appellant  that  mandamus  will 
not  be  proper  in  such  a  case  if  the  defendant  is  still  in  office.  But  it 
is  said  that  the  defendant  being  no  longer  in  office,  he  was  not  amen-' 
able  to  mandamus.  Mandamus  is  the  proper  remedy  to  compel  the 
performance  of  an  official  duty.  At  the  expiration  of  a  term  of  of- 
fice, it  is  the  official  duty  of  the  of^cer  to  surrender  the  books  of  his 
f)fficc.  The  duty,  we  think,  so  far  as  the  remedy  for  its  enforcement 
is  concerned,  does  not  become  less  an  official  duty  because  it  is  neg- 
lected until  the  office  has  expired. 

Affirmed. 

Sec  also,  Nelson  v.  EHwards  S5/Tex.  389;  State  v.  Johnson,  29  La.  Ann. 
399;   Walter  V.   Belding,  24  Vt."6s8. 


§    3  ro  PUBLIC  OFFICERS.  165 

9.     To  compel  acceptance  of  office  and  discharge  of  official  duties. 
PEOPLE,  EX  HEL.  GERMAN  INSURANCE  CO.,  v.  WILLIAMS. 
1893.     Supreme  Court  of  Illinois.     145  111.  573,  33  N.  E.  849. 

Petition  for  mandamus  by  the  people  of  the  state  01  Illinois,  on 
the  relation  of  the  German  ln§iirance  Company,  to  compel  Thomas 
C  Williams  to  assume  the  duties  of  town  clerk.    Granted. 

The  other  facts  sufficiently  appear  in  the  opinion  of  Shope,  J. 

This  is  an  original  proceeding  in  this  court  for  mandamus  to  com- 
pel th§  respondent,  Thomas  C.  Williams,  to  accept,  assume  and  take 
upon  himself,  and  execute  the  office  of  town  clerk  of  the  town  of  Mt. 
Morris,  in  the  county  of  Ogle,  in  this  state ;  to  take  and  subscribe 
the  oath  of  office ;  and  to  file  such  oath  in  the  office  of  the  town  clerk. 
The  petition  shows  that  on  the  31st  day  of  March,  1891,  the  board 
of  town  auditors  of  the  town  of  Mt.  Morris,  in  said  county,  acting 
"iinder  a  peremptory  writ  of  mandamus  of  this  court,  audited  and  al- 
lowed to  the  relator  in  this  proceeding  the  sum  of  $45,050,  as  in- 
debtedness owing  by  said  town  upon  its  bonds  belonging  to  the  re- 
lator, and  made  a  certificate  thereof  in  conformity  with  the  statute. 
It  is  then  alleged  that  the  town  clerk  of  said  town  had  absconded 
from  the  state  of  Illinois,  and  there  being  no  town  clerk  of  said  town 
then  present,  and  the  justices  of  the  peace  of  said  town,  and  the 
supervisors  thereof,  having  failed  and  neglected  to  fill  the  vacancy 
of  town  clerk  in  said  town  by  appointment,  the  said  board  of  audi- 
tfirs^  did  not,  nor  could,  deliver  said  certificate  to  the  town  clerk,  of 
the  town,  to  be  by  him  kept  as  required  by  law,  and  the  aggregate 
amount  thereof  to  be  certified  by  the  town  clerk  to  the  county  clerk 
of  said  Ogle  county,  as  required  by  law  in  such  cases.  The  petition 
then  shows  that  at  the  annual  town  meeting  held  in  1891,  a  town 
clerk  of  said  town  was  elected,  but  the  person  so  elected,  neglected 
and  refused  to  qualify  as  by  law  required.  The  petition  alleges  fur- 
ther that,  after  the  failure  of  the  elected  town  clerk  to  qualify  as 
aforesaid,  there  was  sued  out  of  this  court  an  alias  peremptory  writ 
of  mandamus,  directed,  among  others,  to  the  supervisor  of  the  town, 
of  Mt.  Morris,  the  town  clerk,  the  justices  of  the  peace  of  said  towii* 
commanding  them,  as  they  had  theretofore  been  commanded,  that 
they  immediately,  without  further  excuse  or  delay,  do  every  act  and 
thing  devolving  upon  them  by  law,  as  such  officers,  for  fHe'  levy" 
collection  and  payment  of  a  tax  sufficient  to  pay  the  amount  of  said 
claim,  etc.,  and  that  they  certify  obedience,  etc.;  that  said  writ  was 
served  upon  all  of  said  officers,  except  the  town  clerk ;  that  there- 
after divers  and  sundry  persons  eligible  to  said  office  were,  and  have 
been  by  the  justices  of  the  peace  and  supervisors  of  said  town,  duly 
and  successively  appointed  to  said  office  of  town  clerk  of  said  town, 


l66  GERMAN    INSURANCE    CO.    V.    WILLIAMS.  §    3 

and  duly  notified  thereof,  all  of  whom  have  neglectedandj-efused 
tcTaccept,  qualify  and  serve  said  office,  as  required  by  law ;  tlia't  no 
annual  town  meeting  or  election  whatever  has  been  held  in  said  town 
since  the  annual  meeting  of  1891 ;  that  no  town  clerk  has  been 
elected,  said  office  remaining  vacant;  that  a  phiries  wiit  of  man- 
damus issued,  but  that  said  office  of  town  clerk  remaining  vacant, 
said  plurics  writ  cannot  be  served  on  that  officer,  but  remains  in  the 
hands  of  the  sheriff,  awaiting  the  filling  and  incumbency  of  that  of- 
fice, to  be  served.  The  petition  shows  that  since  the  audit,  allowance, 
and  certification  of  said  $45,050,  was  made,  the  said  board  of  town 
auditors  of  said  town  have  audited  and  allowed  the  further  sum  of 
$2,650,  to  the  relator,  as  interest  upon  the  said  bonds,  in  addition  to 
said  previous  suit  and  allowance.  The  petition  further  alleges  that, 
there  being  a  vacancy  in  the  office  of  town  clerk  of  said  town,  on  the 
17th  day  of  September,  1892,  the  justices  of  the  peace  of  said  town, 
and  the  supervisor  thereof  again  met  on  that  day  in  said  town,  for 
the  purpose  of  filling  said  vacancy  in  said  office,  and  by  their  war- 
rants, under  their  hands  and  seals,  appointed  one  Thomas  C.  Wil- 
liams, who  for  more  than  ten  years  Tast  past  had  been  a  resident  of 
said  town,  and  who  had  been  on  said  day  a  legal  voter,  and  had  been 
for  five  years  or  over  next  before  his  said  appointment ;  that  said 
board  of  appointment  forthwith  notified  him  of  his  said  appointment, 
but  that  the  said  Thomas  C.  Williams  has  hitherto  neglected  and  re- 
fused to  accept  said  office,  and  take  and  subscribe  the  oath  that  is 
required  by  law,  whereby  said  office  of  town  clerk  has  continued  to 
be  vacant.  It  is  then  alleged  that,  because  of  their  being  no  town 
clerk  of  said  town,  the  said  certificate  of  audit  so  made  by  the  board 
of  town  auditors,  cannot  be  delivered  to  the  clerk  of  said  town,  to 
be  by  him  kept,  etc.,  nor  can  the  aggregate  amount  thereof  be  cer- 
tified to  the  county  clerk  of  the  said  county  at  the  same  time  and  in 
the  said  manner  as  other  amounts  required  to  be  raised  for  town 
purposes  in  said  town  to  be  levied  and  collected  as  other  town  taxes, 
as  is  by  law  required,  whereby  the  relator  is  unable  to  obtain  the  levy 
and  collection  of  a  tax  upon  the  property  of  said  town,  wherewith  to 
pay  the  amount  so  audited  and  allowed.  The  prayer  is  that,  as  ancil- 
lary to  the  original  proceeding  before  mentioned,  wherein  the  said 
several  peremptory  writs  issued  have  proved  unavailing,  by  reason  of 
there  being  no  town  clerk  upon  which  to  serve  the  same,  a  writ  of 
niandanius  he  now  here  awarded,  commanding  said  Williams  to  ac- 
cept, assume,  aiid  take  upon  himself  said  office,  etc.  The  respondent 
filed  a  general  demurrer  to  the  petition. 

Siioi'E,  J.  (after  stating  the  facts.) 

The  princijjal  question  is  whether  mandamus  will  lie  to  compel 
the  acceptance  of  a  municipal  office  by  one  who,  possessing  the 
requisite  qualification,  has  been  duly  elected  or  appointed  to  the 
same.     It  is  stated  bv  text  writers  that  no  case  has  arisen  in  this 


§    3  TO  PUBLIC  OFFICERS.  167 

country  involving  this  precise  question,  Merrill  Mand.,  §  145,  Dillon 
Mun.  Cor.  §  162,  and  in  the  researches  of  counsel,  and  our  own  ex- 
amination, none  have  been  found.  There  are,  however,  a  number  of 
analogous  cases  where  similar  questions,  involving  the  same  princi- 
ple, have  been  elaborately  discussed  and  determined  in  the  state  and 
federal  courts.  Very  many  English  cases  are  found  where  it  has 
been  held  that  it  was  a  common  law  offense  to  refuse  to  serve  in  a 
public  office,  to  which  one  had  been  elected  or  appointed  under 
competent  authority,  and  that  mandamus  will  lie  in  that  case  to  com- 
pel the  taking  of  the  official  oath,  and  entering  upon  the  discharge  of 
the  public  duty.  It  is  objected  that  these  cases  do  not  show  that 
mandamus  would  lie,  for  the  refusal  to  accept  public  office,  prior  to 
the  fourth  year  of  Jan:bes  I.  If  the  contention  be  true,  it  is  un- 
important whether  the  particular  remedy  was  by  mandamus,  by  the 
ancient  common  law,  or  not.  The  important  subject  of  inquiry  is 
whether  it  was  a  common  law  duty  to  accept  and  discharge  the 
duties  of  a  public  municipal  office.  The  writ  of  mandamus  was  in 
use  as  early  as  the  fourteenth  and  fifteenth  centuries.  Rex  v.  Uni- 
versity, Fortes.  (K.  B.)  202  ;  Rex  v.  Gower,  3  Salk.  (K.  B.)  230.  It 
appears  from  Dr.  Widdrington's  case  (A.  D.  1673),  i  Lev.  (K.  B.) 
23,  that  mandamus  had  been  in  use  as  early  as  in  the  time  of  Ed- 
ward II  and  Edward  III,  between  1307  and  1377.  Originally  it  was 
a  letter  missive  from  the  sovereign  power,  commanding  the  party 
to  whom  it  was  addressed,  to  perform  the  act  or  the  duty  imposed. 
Later  it  obtained  sanction  as  an  original  writ  emanating  from  the 
king's  bench,  where,  by  fiction  of  law,  the  king  was  always  present. 
But  it  does  not  seem  to  have  been  frequently  used,  nor  adopted  as 
the  remedy  to  compel  the  acceptance  of  office,  until  late  in  the  seven- 
teenth century.  In  modern  time  the  uses  of  the  writ,  and  the  pur- 
poses to  which  it  will  be  applied,  have  been  greatly  enlarged  and  it 
has  come  into  general  use  v/here  there  is  a  legal  duty  imposed,  and 
no  other  remedy  is  provided  by  law  for  a  failure  to  discharge  it ;  and 
in  many  other  cases,  against  those  exercising  an  office  or  a  fran- 
chise, where  there  may  be  another  remedy,  but  it  is  less  direct  and 
effective.  In  this  state,  as  in  most  if  not  all  the  states  of  the  union, 
the  proceeding  is  regulated  by  statute.  Chap.  87,  R.  S.  The  com- 
mon law  of  England,  so  far  as  the  same  is  applicable  and  of  a  gen- 
eral nature,  and  all  statutes  or  acts  of  the  British  parliament,  made 
in  aid  of,  and  to  supply  the  defects  of  the  common  law,  prior  to  the 
fourth  year  of  James  I.  (excepting  certain  statutes),  and  which 
are  of  a  general  nature,  and  not  local  to  that  kinfdom,  are  bv  our 
statutes  made  the  rule  of  decision  until  repealed  by  the  legislature. 
Thereby  the  great  body  of  the  English  common  law  became,  so  far 
zs  applicable,  in  force  in  this  state. 

It  is  held  in  numerous  English  cases  that  by  the  common  law  it 
was  the  duty  of  every  person  having  the  requisite  qualifications. 


l68  GERMAN    INSURANCE    CO.    V.    WILLIAMS.  §    3 

elected  or  appointed  to  a  public  municipal  office,  to  accept  the  same, 
and  that  a  refusal  to  accept  such  office  was  punishable,  at  the  com- 
mon law.  The  case  of  Rex  v.  Lone,  2  Stra.  (K.  B.)  920,  was  an  in- 
dictment for  refusal  to  execute  the  office  of  constable  by  one  who 
had  been  chosen  to  it,  and  it  was  held  that  he  was  indictable  by  the 
common  law.  Rex  v.  Jones,  id.  1145,  was  an  indictment  for  not 
taking  upon  himself  the  office  of  overseer  of  the  poor.  It  was  held 
that  the  offense  was  indictable  upon  the  principles  of  the  common 
law.  See  Rex  v.  Burder,  4  T.  R.  (K.  B.)  778.  Rex  v.  Larwood 
(A.  D.  1695),  4  Mod.  Rep.  (K.  B.)  270,  was  an  information  against 
the  defendant  for  refusal  to  take  the  office  of  sheriff,  to  which  he 
had  been  duly  appointed.  The  defense  was  that  the  defendant, 
being  a  dissenter,  had  not  taken  sacrament  within  a  year  before  he 
was  chosen,  and  so  his  appointment  was  void,  vmder  25  Car,  I,  c.  2 ; 
30  Car.  I,  c.  I,  disabling  Papists,  etc.  It  was  held  that  it  was  the 
fault  of  the  defendant  not  to  have  received  the  sacrament,  and  that 
his  neglect  of  duty  was  no  excvise,  and  that  he  was  liable,  etc.  In 
^'anacker's  case  (A,  D.  1700),  i  Ld.  Raym.  (K.  B.)  496,  it  was  held 
that  the  city  of  London,  a  municipal  corporation,  of  common  right 
possessed  authority,  by  by-law  of  the  corporation,  to  impose  penalties 
for  refusal  to  accept  office ;  Lord  Holt  remarking  that,  "if  a  fran- 
chise be  granted  to  a  corporation,  it  is  under  a  trust  that  the  cor- 
poration shall  manage  it  well."  *  *  *  The  acceptance  of  the  char- 
ter obliges  the  body  politic  to  perform  the  terms  upon  which  it  was 
granted,  and,  as  every  citizen  is  capable  of  the  benefit  of  the  fran- 
chise, so  he  ought  to  submit  to  the  charge,  also,  *  *  *  And 
therefore  as  they  have  advantage  by  some  franchises,  so  they  ought 
to  submit  to  the  charges  of  others.  *  *  *  Therefore  it  is  neces- 
sary that  they  should  have  coercive  power  to  compel  the  persons  to 
take  the  office  upon  them,  and  that  without  any  custom,  otherwise 
this  office  might  be  lost  to  the  city."  King  v.  Raines,  3  Salk.  (K.  B.) 
162.  About  the  beginning  of  the  eighteenth  century,  the  English 
courts  adopted  mandamus  in  such  cases,  as  it  would  seem,  and  the 
practice  has  since  been  followed.  Queen  v.  Hunger  ford  (decided  in 
1708),  II  Mod,  (K.  B.)  142,  was  an  information  in  the  nature  of  a 
quo  warranto,  against  a  common  councilman  of  Bristol,  for  refusing 
to  take  upon  himself  the  office,  etc.  The  remedy  was  denied,  but  it 
was  said,  "If  they  had  applied  to  the  court  for  mandamus,  they 
<^hr)uld  have  had  it."  King  v.  Bower,  i  B.  &  C.  (K.  B.)  585,  was 
n-.andamus  to  compel  the  defendant  to  take  the  oath,  and  to  take 
upon  himself  and  execute  the  office  of  common  councilman  for  the 
b^roiifh  and  town  of  Lancaster.  The  court  said :  "It  is  an  offense 
at  rommon  law  to  refuse  to  serve  an  office,  when  duly  elected."  and 
rrfimcfl  to  hold  that  the  pavment  of  a  fine  imiioscd  bv  bv-law  of  the 
rorj)r)rntion  disrharged  the  obligation  to  accept  and  hold  the  office, 
anrl  .-i   pcrcniptory  writ  was  issued.     See  Rex  v.  Bedford  Corp.,  I 


5;     7,  TO  PUBLIC  OFFICERS.  169 

East  (K.  B.)  53;  Rex  v.  Mayor,  etc.,  2  B.  &  C.  (K.  B.)  261  ;  Clark 
V.  Sharum,  i  Str.  (K.  B.)  1081  ;  Pelson's  case,  2  Lev.  (K.  B.)  252; 
Vintner's  Co.  v.  Passev,  i  Burr.  (K.  B.)  339;  Rex  v.  Grosvenor,  i 
Wils.  (K.  B.)  18;  Rex'v.  Whitwell,  5  T.  R.  (K.  B.)  86 ;  Rex  v.  Ley- 
land,  3  M.  &  S.  (K.  B.)  184. 

Further  citation  from  cases  will  not  be  necessary.  So  uniformly 
has  the  doctrine  been  maintained  that  there  is  a  legal  duty  to  accept 
an  office  when  duly  elected  or  appointed,  in  a  public  or  municipal 
corporation,  and  that  mandamus  is  an  appropriate  remedy  in  all 
cases  of  refusal,  that  it  is  accepted  by  all  the  text  writers.  Thus  Mr. 
Grant  (Law  of  Corporations,  p.  230)  states  the  rule: — "On  the 
other  hand,  when,  not  being  exempt  or  disqualified,  a  man  is  duly 
elected  to  an  office,  the  court,  if  the  corporation  is  a  public  one,  and 
the  office  of  a  sufficiently  important  nature  to  justify  its  interference, 
and  in  all  cases  where  the  office  is  connected  with  the  administration 
of  local  jurisdiction  vested  in  the  corporation,  or  the  administration 
of  justice,  will  interfere  by  mandamus,  to  compel  him  to  take  upon 
him,  and  serve,  the  office."  To  the  same  eflfect  see  Willc.  Mun.  Cor. 
128;  Mechem  Pub.  Off.,  §  243;  High  Extr.  Rem.,  §  334;  Shortt  In- 
formation, 324-328;  Tapping  Man.,  189.  In  Merrill  Man.,  §  145,  it 
is  said :  "A  party  who  has  been  elected  to  an  office  owes  a  duty  to 
the  public  to  qualify  himself  therefor,  and  to  enter  upon  the  dis- 
charge of  his  duties.  Such  duty  being  incumbent  on  him  by  law,  he 
may  be  compelled  by  the  writ  of  mandamus  to  assume  the  office,  and 
take  upon  himself  the  duties  thereof.  Though  he  may  be  subject  to 
an  indictment  or  fine  for  failure  to  do  so,  still  the  writ  of  mandamus 
will  be  granted,  because  neither  the  indictment  nor  the  fine  is  an 
adequate  remedy  in  the  premises,  since  it  does  not  fill  the  office,  and 
prevent  a  failure  of  the  discharge  of  the  public  duties."  It  follows, 
necessarily,  if  to  refuse  the  office  is  a  common  law  offense,  and  pun- 
ishable as  such,  that  a  legal  duty  attaches  to  the  person  to  take  upon 
himself  the  office,  which  may  now  be  enforced  by  mandamus. 

While  this  class  of  offices  were  accepted  in  England  as  a  burden, 
they  have  not  been  generally  regarded  so  in  this  country.  Under 
our  system  of  local  government,  even  the  smallest  offices  are  gener- 
ally accepted,  either  because  they  are  supposed  to  lead  to  those  that 
bring  higher  honors  and  greater  emoluments,  or  because  of  a  sense 
of  duty.  To  this  fact,  and  perhaps  to  the  prevalent  but  mistaken 
idea  that  one  who  is  holding  a  public  office  may  resign  at  will,  is  to 
be  attributed  the  absence  of  decision  upon  the  precise  question  in 
this  country.  The  cases,  bearing  upon  this  question,  in  this  country, 
have  ordinarily  arisen  where  the  incumbent  attempted  to  resign  from 
a  public  office;  am!  it  has  been  iiiiifoniily  licld  that  the  pozvcr  to  re- 
sign did  not  existj  or  resiguafioji  becouie  etfectiz'c  to  discharge  the 
omcer  from  ike  public  duty,  until  accepted  by  competent  and  lazvfnl 
'  authority.     In  Edwards  v.  United  States,  10^  U.  S.  471,  Edwards 


1^0  GERMAN    INSURANCE    CO.    V.    WILLIAMS.  §    3 

had  been  elected  supervisor  of  the  town  of  St.  Josephs,  Berrien 
County,  Alich.,  on  April  3,  1876,  and  entered  upon  the  duties  of  his 
office,  and  on  the  7th  of  June  following  resigned  in  writing,  and  filed 
the  same  with  the  town  clerk.  No  action  upon  the  resignation  was 
alleged  to  have  been  taken  by  the  township  authorities,  and  the  ques- 
tion was,  "^^'as  the  resignation  complete  without  an  acceptance  of  it, 
or  something  tantamount  thereto,  such  as  the  appointment  of  a  suc- 
cessor?" The  court  held  that  it  was  not,  and  says,  "In  England,  a 
person  elected  to  a  municipal  office,  was  bound  to  accept  it,  and  per- 
form its  duties,  and  he  subjected  himself  to  a  penalty  by  a  refusal. 
An  office  was  regarded  as  a  burden  which  the  appointee  was  bound, 
in  the  interest  of  the  community  and  good  government,  to  bear." 
And  it  is  said  that  it  follows  from  this,  as  a  matter  of  course,  that, 
after  the  office  was  assumed,  it  could  not  be  laid  down  at  will ;  and, 
that  court  holding  that  the  common  law  rule  prevailed  in  Michigan, 
the  judgment  awarding  a  peremptory  writ  compelling  the  perform- 
ance of  the  duty  as  supervisor,  etc.,  was  affirmed.  '  In  the  case  of 
Hoke  v.  Henderson,  4  Dev.  (N.  Car.)  i,  it  is  said,  in  passing  upon 
the  question  there  at  issue, — "An  officer  may  certainly  resign,  but 
\v  ithout  acceptance  his  resignation  is  nothing,  and  he  remains  in  of- 
fice. It  is  not  true  that  the  office  is  held  at  the  will  of  either  party. 
It  is  held  at  the  will  of  both."  And  after  saying  that  the  acceptance 
of  resignations,  in  respect  of  lucrative  offices  has  been  so  much  a 
matter  of  course,  that  it  has  become  the  common  understanding  that 
to  resign  is  a  matter  of  right,  but  the  law  is  otherwise,  it  is  said : 
"The  public  has  a  right  to  the  service  of  all  the  citizens,  and  may  de- 
mand them  in  all  civil  departments,  as  well  as  the  military."  Tn 
State  v.  Ferguson,  31  N.  J.  L.  107,  the  question  was  whether  the 
respondent,  at  the  time  of  the  service  of  the  writ  of  mandamus,  was 
an  overseer  of  highways,  etc.  The  respondent  proved  that  before 
the  service  of  the  mandamus,  he  had  sent  in  his  resignation  of  said 
riffice,  on  which  certain  of  the  township  committee  had  endorsed  ac- 
ceptance. It  was  insisted  that  the  officer  had  a  right  to  resign  at 
will,  and  that  the  mere  notification  of  the  proper  officers  of  the  fact 
relieves  him  from  performance  of  the  official  duty.  The  chief  jus- 
tice, after  reviewing  the  common  law  authorities,  says :  "I  think  it 
undeniable,  therefore,  that  upon  the  general  principles  of  law,  as 
contained  in  the  judicial  decisions  of  the  highest  authority,  the  re- 
fusal of  an  office  of  the  class  to  which  the  one  under  consideration 
belongs  was  an  offense  punishable  by  a  proceeding  in  behalf  of  the 
IMiblic.  Regarding  then,  the  doctrine  of  the  law  as  established,  it 
seems  to  be  an  unavoidable  sequence  that  the  party  elected,  and  who 
is  thus  compelled,  bv  force  of  the  sanction  of  the  criminal  law,  to  ac- 
ccj)t  the  office,  cannot  afterwards  resign  it  ex  nicro  inofn.  If  his  re- 
cusancy U)  accept  can  be  jninishcd,  it  cannot  be  that  he  can  accept, 
and  immediately  afterwards,  at  his  own  pleasure,  lay  df>wn  the  office  " 


§    3  TO  PUBLIC  OFFICERS.  IJ I 

The  same  principle  has  been  announced  more  or  less  directly  in  Van 
Orsdall  v.  Howard,  3  Hill.  (N.  Y.)  243;  London  v.  Hedden,  76  N. 
Car.  '72;  Winnegar  v.  Roe,  i  Cow.  (N.  Y.)  258;  People  v.  Supervi- 
sors Barnett  Tp.,  loo  111.  332;  Badger  v.  United  States,  93  U.  S.  599. 
The  reason  assigned  in  Rex  v.  Larwood,  i  Salk.  (K.  B.)  168,  for  the 
public  duty  is  "that  the  king  hath  an  interest  in  every  subject,  and  a 
right  to  his  service,  and  no  man  can  be  exempt  from  the  office  of 
sheriff  but  by  act  of  parliament  or  by  letters  patent."  In  a  republic 
the  sovereign  power  rests  in  the  people ;  to  be  expressed  only  in  the 
forms  of  law ;  and  if  the  duty,  preservative  of  the  common  welfare, 
is  disregarded,  society  may  suffer  great  inconvenience  and  loss  be- 
fore, through  the  methods  of  legislation,  the  evil  can  be  remedied. 
Upon  a  refusal  of  officers  to  perform  their  functions,  effective  gov- 
ernment pro  taiito  ceases.  In  civilized  and  enlightened  society,  men 
are  not  absolutely  free.  All  citizens  owe  the  duty  of  aiding  in  carry- 
ing on  tji£  civil  departments  of  the  government.  The  burden  of  the 
government  must  be  borne  by  the  citizen  as  a  contribution  in  return 
for  the  protection  afforded.  The  sovereign,  subject  only  to  self- 
imposed  restrictions  and  limitations,  may,  in  right  of  eminent  do- 
main, take  the  property  of  the  citizen  for  the  public  use.  He  is  re^ 
quired  to  serve  on  juries,  to  attend  as  a  witness  and,  without  compen- 
sattSif,  Is  required  to  Join  the  posse  comitatus  at  the  command  of  the 
representative  of  the  sovereign  power:  and  he  is  required  to  do 
military  service  at  the  command  of  the  sovereign.  In  all  these,  pri- 
vate right  and  convenience  must  yield  to  the  public  welfare  and 
necessity.  It  is  essential  to  the  public  welfare,  necessary  to  the  pre- 
servation of  government,  that  public  affairs  be  properly  administered ; 
and  for  this  purpose  civil  officers  are  chosen,  and  their  duties  pre- 
scribed by  law.  A  political  organization  must  necessarily  be  defec- 
tive that  provides  no  adequate  means  to  compel  the  observance  of 
the  obvious  duty  of  the  citizen,  chosen  to  office,  to  enter  upon  and 
discharge  the  public  duty  imposed  by  its  lav/s,  and  necessary  to  the 
exercise  of  the  functions  of  government. 

It  is  admitted  by  the  demurrer  that  the  respondent  was  legally  ap- 
pointed town  clerk  of  the  town  of  Mt.  Morris.  The  office  is  con- 
nected w'ith,  and  necessary  to,  the  levy  of  taxes  to  carry  on  the  mu- 
nicipal affairs  of  the  town,  and  the  administration  of  its  local  juris- 
diction. It  is  shown  that  there  was  a  public  necessity,  as  well  as  that 
the  relator  had  a  private  interest  in  the  performance  of  the  duties 
of  that  office.  No  election  had  been  held  in  the  town  since  the  an- 
nual town  meeting  of  1891.  Numerous  persons  had  been  appointed 
to  said  office,  but  it  remained  vacant,  and  the  duties  consequently  un- 
discharged. It  is  admitted  by  the  demurrer,  also,  that  claims  against 
the  town  in  favor  of  the  relator,  to  a  large  amount,  had  been  audited 
by  the  board  of  town  auditors  of  said  town,  and  allowed,  and  certifi- 
cate thereof  duly  made,  as  provided  bv  law.  but  that  the  same  could 


172  GERMAN    INSURANCE    CO.    V.    WILLIAMS.  §    3, 

not  be  delivered  to,  or  filed  with  the  town  clerk,  because  of  such 
vacancy  in  said  office,  nor  could  the  aggregate  amount  thereof  be 
certified  to  the  county  clerk  of  said  county,  to  be  levied  and  collected 
as  other  town  taxes.  It  is  conceded  that  the  respondent  was  eligible 
to  the  office ;  that  a  vacancy  therein  existed ;  that  he  was  appointed 
conformably  to  the  law,  and  duly  notified  thereof.  §§  1-3,  art.  lo,  c. 
139,  Rev.  Stat.  The  statute  provides  that  every  person  appointed  to 
the  office  of  town  clerk,  before  he  enters  upon  the  duties  of  his  office, 
and  within  ten  days  after  he  shall  be  notified  of  his  appointment, 
shall  take  and  subscribe  before  some  justice  of  the  peace,  etc.,  the 
oath  or  affirmation  of  office  prescribed  by  the  constitution,  and  with- 
in eight  days  thereafter  file  the  same  in  the  office  of  the  town  clerk. 
);  2,  art.  9,  c.  139,  Rev.  Stat.  §  3  of  the  same  article  provides  that 
if  any  person  elected  or  appointed  to  said  office  shall  neglect  or 
refuse  to  take  the  said  oath,  and  cause  the  same  to  be  filed  as  afore- 
said, such  a  neglect  shall  be  deemed  a  refusal  to  serve.  And  §  7  of 
the  same  article  provides: — "If  any  person  elected  to  the  office  of 
town  clerk  shall  refuse  to  serve,  he  shall  forfeit  to  the  town  the  sum 
of  $25."  One  of  the  special  duties  enjoined  upon  the  town  clerk  is : 
"He  shall  annually,  at  the  time  required  by  law,  certify  to  the  county 
clerk  the  amount  of  the  taxes,  required  to  be  raised  for  all  town  pur- 
poses." §  4,  art.  12,  c.  139,  Rev.  Stat.  §§  127,  128,  c.  120,  Rev.  Stat. 
1874,  provides  that  the  county  clerk  shall  determine  the  rate  percent 
upon  the  valuation  of  the  property  of  towns,  etc.,  that  will  produce 
not  less  than  the  net  amount  of  the  sums  certified  to  him  according  to 
law,  to  be  extended  by  the  county  clerk  upon  the  equalized  valuation 
of  property  in  said  town,  etc.  The  only  mode  provided  by  law  by 
which  a  tax  can  be  levied  upon  the  property  of  the  town  for  the  pay- 
ment of  its  debts  or  current  expenses  is  by  the  certificate  of  the  town. 
clerk  of  the  town  to  the  county  clerk,  as  thus  prescribed.  It  is  appar- 
ent therefore  that  a  public  necessity  exists  for  the  discharge  of  the 
public  duty. 

It  is  insisted  that,  the  legislature  having  provided  a  penalty  for 
the  refusal  to  acce])t  the  office,  that  remedy  is  exclusive,  and  that  a 
payment  of  the  penalty  imposed  was  intended  to  be  in  lieu  of  the 
service.  We  cannot  concur  in  this  view.  The  purpose  of  imposing 
the  penalty  was  to  enforce  the  acceptance  of  the  office,  and  perform- 
ance of  its  duties ;  and  the  statute  cannot  be  construed  that  the  per- 
son chosen  should  be  discharged  from  the  duty  by  the  payment  of  the 
j^enalty,  and  thereby  the  purposes  of  the  creation  of  the  office  frus- 
trated, and  the  public  duty  remain  un]:)crformed.  Authorities  supra. 
It  is  to  be  i)rcsumcd  that,  had  the  legislature  intended  that  the  pay- 
ment of  the  fine  was  to  be  in  lieu  of  the  service,  they  woulol  have  so 
enacted,  and,  not  having  done  so,  the  duty  remains,  notwithstanding 
the  imposition  of  the  fine  or  the  penalty.  High  Extr.  Rem.,  §  334, 
supra. 


§    4       MANDAMUS    TO    MUNICIPAL   CORPORATIONS    AND   OFFICERS.       I73 

It  is  also  insisted  that  the  demurrer  should  be  sustained  for  the 
reason  that  no  demand  is  averred  to  have  been  made  upon  respond- 
ent to  accept  the  ofifice,  and  perform  its  duties.  It  is  alleged  that  he 
was  duly,  forthwith,  notified  of  his  appointment,  by  the  board  au- 
thorized by  law  to  make  the  same  (§3,  art.  10,  c.  139.  Rev.  Stat. 
1874),  and  that  he  refused  and  neglected  to  accept  the  office.  Upon 
being  notified,  it  was  his  duty,  by  law,  to  take  and  subscribe  the  oath 
of  office  and  file  the  same,  and  enter  upon  the  discharge  of  the  duties. 

Relator  was  not  alone  interested,  nor  did  the  failure  of  the  re- 
spondent to  qualify  aflfect  its  interest  only.  On  the  contrary,  the 
duty  the  performance  of  which  is  sought  to  be  enforced,  is  a  public 
duty,  commanded  by  the  public  law.  The  case  is  therefore  clearly 
distinguishable  from  one  in  w^hich,  the  act  sought  to  be  enforced,  is 
for  the  benefit  of  some  private  party.  In  cases  of  this  class,  no  for- 
mal demand  was  necessary,  as  preliminary  to  the  application  for 
mandamus.  People  v.  Board  of  Ed.,  127  111.  624,  21  N.  E.  187.  We 
are  of  the  opinion  that  respondent  ought  to  Ix'  required  to  accept  The 
office  of  town  clerk  of  said  town,  to  which  he  has  been  duly  and 
legally  appointed,  to  take  and  file  the  oath  as  such  town  clerk,  as 
provided  by  law,  and  to  discharge  the  duties  of  said  office,  and  a 
peremptory  writ  of  mandamus  is  awarded  accordingly. 


ititiiiamMkmim'Mm'imir-yrrr'r^ 


Section  4. — Mandamus  to  Municipal  Corporations  and  Municipal  Offi- 
cers. 

I.     In  general. 

HOWE   V.    COMMISSIONERS    OF   CRAWFORD    COUNTY. 
1864.     Supre:me  Court  of  Pennsyia'axta.     47  Pa.   St.  361. 

This  was  an  application  by  O.  Kendall  Howe,  Burgess  of  Titus- 
ville,  for  an  order  in  the  nature  of  a  mandamus,  to  compel  the  com- 
missioners of  Crawford  County  to  repair  or  rebuild  a  bridge  over  Oil 
Creek,  at  Titusville,  in  said  county. 

The  bridge  had  been  built  by  the  county  in  1820  by  direction  of  the 
Quarter  Sessions,  under  and  by  virtue  of  the  Act  of  1802,  and  had 
been  repaired  from  time  to  time  at  the  expense  of  the  county,  but 
at  the  time  of  this  application  the  superstructure  had  by  age  and 
neglect  become  impassable,  or  nearly  so. 

The  refusal  of  the  commissioners  to  rebuild  the  bridge  was  based 
on  their  construction  of  an  Act  of  Assembly,  approved  March  11, 
1844,  bx,which  an  Act^approved  April  13.  1843,  which  imposed 
on  couritieT*l!?e'^i!uty  of  keeping  county  bridges  that  had  been  built 


174  HOWE  V.    COMMISSIONERS.  §    4 

under  the  Act  of  1836  in  repair,  had  been  repealed;  and  because 
also  the  bridge  was  not  within  the  corporate  limits  of  the  borough 
of  Titusville. 

The  court,  below  refused  to  award  the  order  prayed  for,_which 
was  the  error  assigned. 

The  opinion  of  the  court  was  delivered  by 

Woodward,  C.  J. — County  bridges  under  our  General  Road  Law 
of  June  13,  1836,  are  such  as  are  established  agreeably  to  the  provi- 
sions of  the  35th  section  of  that  enactment,  and  it  is  only  to  such 
bridges  that  the  remedial  provisions  of  the  subsequent  sections  apply. 
The  Oil  Creek  Bridge,  in  question  here,  is  not  such  a  bridge,  because 
rt;"~was  built  long  before  the  Act  of  1836,  but  it  was  nevertheless 
a  count}-  bridge  under  the  prior  Acts  of  the  Assembly,  anci  by 
virtue  of  the  very  regular  proceedings  had  in  the  Quarter  Sessions 
of  Crawford  county  in  1820.  Built  originally  by  the  county  under 
legal  authority,  and  repeatedly  repaired  by  the  commissioners  with- 
out the  stimulus  of  a  judicial  mandamus,  how  has  it  ceased  to  be 
a  county  bridge?  How  has  the  obligation  to  maintain  it  been 
taken  off  the  shoulders  of  the  commissioners? 

It  is  said  the  Act  of  April  13,  1843,  which  charged  counties  with 
the  duty  of  repairing  county  bridges  built  under  the  Act  of  1836. 
was  repealed  as  to  Crawford  county  by  the  Act  of  the  nth  of 
March,  18^4;  and  so  it  was,  but  what  had  this  legislation  to  do 
with  a  county  bridge  that  was  not  built  under  the  Act  of  1836, 
but  under  that  of  1802?  We  do  not  think  that  the  rebuilding  of  the 
bridge  in  1846  was  an  unauthorized  act  on  the  part  of  the  com- 
missioners, but  a  proper  duty,  which  if  they  had  not  done  it  volun- 
tarily, the  court  would  have  compelled  them  to  perform.  The  duty 
was  imposed  by  the  judicial  proceedings  of  1820,  and  it  was  a  con- 
tinuing duty  which  the  repeal  of  the  Act  of  1843  in  nowise  affected. 

And  nothing  has  since  occurred,  neither  legislation  nor  judicial  ac- 
tion, to  take  away  the  county  character  of  this  bridge.  The  incor- 
poration of  the  borough  of  Titusville  did  not  relieve  the  county 
of  the  obligation  to  maintain  it,  much  less  its  natural  decay  or 
accident  by  flood  or  fire.  On  the  contrary,  the  Act  of  the  25th  of 
March,  1861,  P.  L.  206,  was  declaratory  of  the  duty  of  the  com- 
missioners "to  repair  all  accidental  damages  to  the  comity  bridges 
of  said  county  (of  Crawford)  which  may  have  been  or  shall  hereafter 
he  caused  by  the  violence  of  fires,  floods,  winds,  or  otherwise, 
and  to  repair  the  same  when  impassable  or  dangerous  from  decay." 

If  wc  should  construe  the  word  "repair"  in  this  act  as  strictly 
as  the  court  below  did.  nay,  if  we  should  set  aside  the  act  alto- 
gether, the  duly  of  maintaining  the  bridge,  once  legally  imposed 
upon  the  county  and  never  taken  off,  will  still  have  to  be  enforced. 
But  wc  cannot  so  read  the  act  as  to  cxchuk-  the  restoration  of  a 
broken   superstructure.     What   hut    a   "rc])air"   of  a   bridge   is  the 


§    4      MANDAMUS   TO    MUNICIPAL    CORPORATIONS    AND   OFFICERS.       I75 

renewal  of  the  superstructure?  The  principal  cost  of  most  bridges 
is  in  the  piers  and  abutments.  These  we  understand,  are  unimpaired 
in  the  bridge  in  question,  but  the  superstructure  broke  down  from 
age  and  decay,  and  the  commissioners  doubt  whether  an  Act  of 
Assembly  is  applicable  which  enjoins  them  to  repair  all  county 
bridges  when  "dangerous  or  impassable  from  decay."  If  we  com- 
prehend the  case,  this  bridge  is  impassable  from  decay,  and  so  is 
within  the  very  words  of  the  act.  We  cannot  graduate  repairs,  and 
say  slight  ones  may  be  done,  and  large  ones  neglected.  The  legis- 
lature did  not  mean  we  should  do  this.  They  meant  by  repairs  what- 
ever was  necessary  to  make  bridges  safe  and  passable,  and  gen- 
erally those  repairs  that  are  the  most  thorough  are  in  the  end 
the  cheapest. 

Such  is  our  construction  of  the  Act  of  1861,  and  of  the  duties 
of  the  commissioners,  both  under  the  act  and  without  it.  Man- 
damus is  the  spur  by  which  the  law  moves  them  to  their  duty,  and 
though  the  proceedings  in  this  case  were  not  very  formal,  they 
are  not  excepted  to  on  this  ground,  and  we  will  reverse  the  judgment 
below,  and  remand  the  record  with  directions  to  award  a  peremptory 
mandamus. 

Agnew,  J.,  was  absent  at  AHsi  Prins  when  this  case  was  argued. 

See  also,  Pfister  v.  Bd.  of  Commissioners,  82  Ind.  382;  Albin  v.  Board 
of  Directors,  58  Iowa,  yj;  Hall  v.  Selectmen,  39  N.  H.  511;  People  v. 
Common  Council  of  N.  Y.,  45  Barb.  (N.  Y.)  473;  People  v.  Green,  64 
N.  Y.  499;  State  v.  Porter,  134  Ind.  63;  Henry  v.  Taylor,  57  Iowa,  72: 
Humboldt  Co.  v.  Churchill  Co.,  6  Nev.  30;  People  v.  Supervisors,  56  N. 
Y.  249;  Nye  V.  Rose,  17  R.  I.  733. 

But  see  People  v.  Whipple,  41  Mich.  548. 


2.     To  compel  auditing  and  payment  of  claims. 

(See  Raish  v.  Board  of  Education.  81  Cal.  542,  Supra,  p.  54.) 

HALL  V.  SELECTMEN  OF  SOMERSWORTH. 

1859.     Supreme  Judicial   Court   of   New    Hampshire. 
39  N.  H.  511. 

Petition  for  a  mandamus,  filed_  by  the  school  commissioner  for 
the  county  of  StrafifoVd^for  the  year  commencing  June  23,  1859,  to 
compel  the  selectmen  of  Somersworth.  in  that  county,  to  pay  overTo^ 
the  commissioner  the  sum  of  sixty-five  dollars  and  eight  cents,  being 
a'  sum  eiiual  to  two  per  cent,  of  the  amount  required  by  law  to  be 
"raised  for  the  support  of  common  schools  in  said  town  of  Somers- 
woftH. 


176  HALL  V.   SELECTMEN  OF  SOM  ERSWORTH.  §    4 

Bellows,  J. — All  the  facts  alleged  in  the  petition  in  this  case, 
independent  of  legal  conclusions,  were  admitted  by  the  respondents, 
and  the  objections  to  granting  a  mandamus  urged  at  the  hearing 
were,  mainly,  that  there  was  no  duty  of  an  imperative  character 
upon  either  the  town  or  the  selectmen  to  make  the  appropriation,  but 
tiiat.th.e  JiV-hole  matter  was  discretionary,  inasmuch  as  the  teachers' 
institutes  were  voluntary  associations ;  that  the  selectmen  had  no 
authority  to  assess  such  a  tax  without  the  vote  of  the  town,  and 
that  there  was  no  law  compelling  the  selectmen  to  pay  the  money 
to  the  commissioner. 

Upon  a  careful  examination  of  the  various  statutes  upon  this 
subject,  we  are  all  of  the  opinion,  that  the  duty  of  the  town  to 
appropriate  and  pay  over  the  two  per  cent,  for  the  support  of  the 
teachers'  institutes'  is  imperative. 

The  obligation  of  the  town,  then,  to  pay  their  money  is  like  other 
pecuniary  obligations,  such  as  to  pay  its  debts  and  to  support  the 
poor  within  its  limits,  and  may  be  enforced  by  appropriate  reme- 
dies. If  it  be  regarded  as  a  provision  for  the  support  of  schools, 
and  as  coming  under  the  general  denomination  of  school  taxes,  then, 
as  the  amount  is  fixed  or  can  be  determined  by  computation,  the 
selectmen  would  be  authorized  by  ch.  43  of  the  Rev.  Stat.  §  3,  to 
assess  the  same.  If  not  so  regarded,  it  would  fall  within  the  general 
idea  of  town  charges,  and  would  be  provided  for  out  of  the  money 
raised  for  such  purpose,  as  town  taxes ;  and  a  separate  assessment 
would  not  be  necessary  any  more  than  in  the  case  of  money  for 
the  support  of  the  poor.  Tucker  v.  .Viken,  7  N.  H.  126,  127.  In 
either  event  it  would  be  the  duty  of  the  selectmen,  who  have  the 
management  of  all  the  prudential  affairs  of  the  town,  to  provide  for 
and  pay  over  seasonably  the  required  sum.  It  ^stands,  iipon  the  foot- 
ing of  a  debt  or  an  obligation,  resting  upon  the  town,  which  ought 
to  be  discharged  in  season,  to  promote  the  objects  designed  by  the 
law,  and  the  selectmen  would  clearly  be  justified  in  paying  the 
amount  to  the  school  commissioner,  to  be  appropriated  by  him  for 
the  support  of  the  yearly  teachers'  institutes.  This  view  we  think 
h  well  sustained  by  adjudged  cases.  Sanborn  v.  Deerfield,  2  N.  H. 
251  ;  Horn  v.  Whittier  6  N.  H.  88;  Andover  v.  Grafton,  7  N.  H. 
298;  Pike  V.  Middleton,  12  N.  11.  278. 

Thr-  rrmaining  fiucstion  is,  whether  this  is  a  proper  case  for  tiie 
cxet'     •   '  r  the  power  to  grant  the  writ  of  mandamus. 

The  supreme  court  has  power  to  issue  writs  of  mandamus,  pro- 
hibition, and  quo  7varraiito,  and  all  other  writs  and  processes,  to 
courts  of  inferior  jtu^isdiction,  to  corpf)rations  and  individuals,  for 
the  fjirtherance  of  justice  and  the  due  administration  of  the  laws. 
Rev.  Stat.  ch.  Sj  3.  In  what  cases  the  writ  shall  issue,  is  to  be 
determined  by  the  course, and  usages  of  the  courts  in  England  and 
this  country  at  common  law.     In  England  it  is  a  prerogative  writ. 


§    4       MANDAMUS    TO    MUNICIPAL    COKl'OUATIONS    AND   Ol-FICEKS.       I77 

to  the  aid  of  which  the  citizen  is  entitled  upon  a  proper  case,  pre- 
viously shown  to  the  satisfaction  of  the  court.  It  was  introduced 
to  prevent  disorder  from  a  failure  of  justice  and  a  defect  of  police. 
It  ought  to  be  used  upon  all  occasions  where  the  law  has  established 
no  specific  remedy,  and  when,  in  justice  and  good  government 
there  ought  to  be  one.  Lord  Mansfield  in  Rex  v.  Barker,  3  Burr. 
(K.  B.)  1267.  It  is  directed  to  some  person,  corporation,  or  inferior 
court,  requiring  them  to  do  some  particular  thing,  therein  specified, 
which  appertains  to  their  office  or  duty,  and  is  supposed  to  be  conso- 
nant to  right  and  justice.  Kendall  v.  United  States,  11  How.  (U. 
S.)  524,  614.  In  Rex  v.  Buxton  3  T.  R.  (K.  B.)  592,  a  mandamus 
was  issued  to  compel  the  defendant  to  pay  over  to  one  Atherton 
the  weekly  sum  £6,  6s.  2d,  which  the  overseers  of  the  poor  had 
contracted  to  pay  him  for  the  support  of  the  poor  of  the  parish  ; 
it  being  admitted  that  the  defendant  had  the  money,  to  be  applied 
for'  the  relief  of  the  poor,  and  had  refused  to  apply  the  sum  for 
this  purpose.  And  in  Rex  v.  St.  Catherine's  Dock,  4  B.  &  Ad. 
(K.  B.)  360,  a  mandamus  was  granted  to  compel  the  treasurer  to  pay 
a  sum  of  money  awarded  to  be  due  from  the  company,  when  the 
charter  did  not  authorize  execution  to  issue  against  the  effects  of 
individual  members  and  goods  of  the  company.  See  also,  6  Bing. 
(C.  P.)  688.  In  every  well  constituted  government  the  highest 
judicial  authority  must  necessarily  have  a  supervisory  power  over 
all  inferior  tribunals,  magistrates  and  all  others  exercising  public 
authority.  In  the  exercise  of  this  power  the  writ  of  mandamus  may 
be  used,  not  however  as  a  matter  of  right,  but  granted  at  the  discre- 
tion of  the  court,  and  with  much  caution,  and  where  there  is  no  other 
adequate  and  specific  remedy.  Strong,  petitioner,  20  Pick.  (Mass.) 
484,  495,  497.  In  Kendall  v.  United  States,  12  Pet.  (U.  S.)  524,  it 
was  held  that  a  mandamus  lies  to  compel  the  Postmaster  General  to 
credit  the  relator  with  a  certain  sum  which  was  ascertained  and  set- 
tled to  be  due.  In  Commonwealth  v.  Hampden,  2  Pick.  (^lass.)  414, 
it  was  held  that  under  a  provision  that  the  court  of  general  sessions 
should  build  or  provide,  at  the  charge  of  the  county,  a  house  of 
correction,  the  duty  was  peremptory  and  the  mandamus  should 
issue.  In  Carpenter  v.  Commissioners  of  Bristol  County,  21  Pick. 
(Mass.)  258,  it  was  held  that  the  writ  lies  to  all  inferior  tribunals, 
magistrates  and  officers,  and  extends  to  all  cases  of  neglect  to 
perform  a  legal  duty  where  there  is  no  other  adequate  remedy. 
Where,  in  laying  out  a  highway,  the  damages  to  a  land  owner  were 
duly  assessed  and  certified  to  the  commissioners,  who  declined  to 
give  an  order  on  the  county  treasurer  for  the  reason  that  the  road 
was  afterwards  discontinued,  Shaw,  C.  J.,  held  that  it  was  a  proper 
case  for  a  mandamus  to  compel  the  commissioners  to  draw  the  or- 
der. Harrington  v.  County  Commissioners.  22  Pick.  (Mass.)  263. 
So  a  mandamus  was  issued  to  require  county  courts  to  assess  dam- 


178  HALL  V.  SELECTMEN  OF  SOMERSWORTH.  §    4 

ages  for  injury  to  the  petitioner's  land  by  a  road  located  so  near 
as  to  injure  his  buildings  by  blasting.  Dodge  v.  Essex  County, 
3  j\Ietc.  (Mass.)  380.  So  a  mandamus  will  lie  to  compel  a  county 
treasurer  to  pay  a  sheriff  for  his  services  in  attending  court,  the 
account  having  been  allowed  by  the  presiding  judge  (Baker  v. 
Johnson,  41  Me.  15,  and  many  cases  cited)  ;  to  compel  a  county 
treasurer  to  pay  a  demand  legally  allowed  for  the  supervisors, 
People  v.  Edmunds,  19  Barb.  (N.  Y.)  468;  to  compel  a  school  dis- 
trict from  which  another  has  been  taken,  to  pay  over  the  proportional 
amount  of  the  value  of  the  school-house  retained  by  the  old  district. 
District  No.  2  v.  District  No.  i,  3  Wis.  333.  See  also,  Kimball  v. 
Lamprey,  91  N.  H.  215;  Butler  v.  Selectmen  of  Pelham,  19  N.  H, 
553;  Ballou  V.  Smith,  29  N.  H.  530. 

We  also  think  that  the  case  before  us  comes  within  the j)riiiciples 
established  for  the  exercise  of  this  power.  The  respondents  are 
public  officers,  the  duty  in  question  is  of  a  public  nature,  and  the 
money,  when  paid  over,  is  to  be  applied  to  a  public  object.  It  con- 
cerns the  due  administration  of  the  laws  that  a  duty  like  this  should 
be  promptly  performed ;  and  unless  some  other  adequate  and  specific 
remedy  exists,  the  court  would  not  hesitate  to  resort  to  the  summary 
proceeding  of  a  writ  of  mandamus.  If  the  selectmen  were  liable 
to  indictment,  as  in  case  of  neglect  to  provide  for  the  poor, 
it  could  not  be  said  to  be  an  adequate  and  a  specific  remedy,  inas- 
much as  it  would  place  no  money  in  the  hands  of  the  commis- 
sioner ;  nor  can  the  court  see  any  other  remedy  that  can  be  regarded 
as  adequate  and  specific,  and  at  the  same  time  free  from  serious 
doubt.  No  right  of  action  is  given  to  any  one  by  the  statute 
against  the  selectmen,  or  the  town,  to  recover  this  money,  and  it 
is,  to  say  the  least,  doubtful  whether,  without  some  such  provision, 
any  action  could  be  maintained.  Under  such  circumstances  it  has 
been  held  that  a  mandamus  may  properly  be  granted.  Baker  v. 
Johnson,  41  Me.  24;  Harrington  v.  Berkshire  Co.,  22  Pick.  (Mass.) 
268;  Kendall  v.  United  States,  12  Pet.  (U.  S.)  524,  614.  In 
Kiml)all  v.  Lamprey,  19  N.  H.  210,  a  mandamus  issued  to  compel 
the  old  board  of  selectmen  to  deliver  up  bonks  to  tlie  new  board. 

We  hold,  then,  that  ihe  duty  is  clear  and  spicilic,  and  tliai  ihcre 
is  no  other  adequate  remedy;  and  we  hold,  also,  that  llic_^moncy 
ought  to  be  paid  over  to  the  school  comniissioner.  By  the  law  of 
July  12,  1850.  ch.  955,  it  is  provided  that  it  shall  be  the  duty  of  each 
cf)unty  school  commissioner  to  take  charge  of  the  teachers'  institutes 
that  may  be  held  in  liis  county.  This  law  provides  for  the  appoint- 
ments of  county  school  commissioners,  and  defines  their  duties.  The 
commissioner,  then,  is  the  proper  ]-)erson  to  act  as  the  relator  in  a  case 
of  this  .sort,  he  alone  being  designated  to  a])])roiM-iatc  the  money 
when  received. 

Jn    this   case,   there   liaving   been    notice    of    llu>    ])ctition,    and   a 


§'  4       MANDAMUS    TO    MUNICIPAL   CORPORATIONS   AND   OFFICERS.       I79 

hearing  of  the  parties  before  us,  and  no  suggestion  of  any  other 
objection  than  those  already  disposed  of,  there  must  be  granted, 
inaccordance  with  the  views  here  stated,  a  peremptory  mandamus. 

See  also,  State  v.  Ames,  31  Minn.  440;  Mau  v.  Liddle,  15  Nev.  271; 
State  V.  Born,  97  Wis.  542;  Brem  v.  Ark.  Co.  Ct.,  9  Ark.  240;  Howell  v. 
Cooper,  2  Colo.  App.  530;  Henderson  v.  State,  53  Ind.  60;  Hickey  v.  Oak- 
land County  Supervisors,  62  Mich.  94;  State  v.  McCardy,  62  Minn.  509: 
State  V.  Smith,  15  Mo.  App.  412;  State  v.  Slocum,  34  isTeb.  368;  People 
V.   City  of   New   York,  23   N.   Y.   S.    1060. 

In  all  cases,  however,  where  discretion  is  vested  in  the  officer  or  board, 
Mandamus  will  be  refused.  So  also  where  another  specific  remedy  is  pro- 
vided  by   statute. 


3.     To  compel  municipal  taxation  to  pay  aebts,  subscriptions  and 
bonds. 

UNITED  STATES  v.  NEW  ORLEANS. 

1878.     Supreme  Court  of  the  United  States. 
98  U.  S.  381. 

This  was  a  petition  presented  in  xA.pril,  1876,  by  Morris  Ranger^ 
the  relator,  for  a  writ  of  mandamus  to  compel  the  City  of  New  Or- 
leans to  pay  three  judgments.  The  petition  alleges  that  he  had  re- 
covered them  in  the  circuit  court  of  the  United  States  for  an 
"amount  exceeding  in  the  aggregate  $59,000,  against  the  city,  on  its' 
bonds  and  coupons  issued  mider  the  provisions  of  acts  of  the  legis- 
lature of  Louisiana,  passed  on  tHe  i5th"of  March,  1854,  and  designa- 
ted as  Nps.  108  and  109;  that  executions  had  been  issued  upon 
the  judgments  and  returned  imsafi'sfied ;  that  there  was  no  property 
belonging  to  the  city  subject  to  seizure  thereon. 

It  also  alleges  that  in  June,  1870,  the  city  had  sold  eighty  thou- 
sand shares  of  stock  of  the  New  Orleans,  Jackson,  and  Great  North- 
ern Railroad  Company,  which  it  held,  for  the  sum  of  $320,000, 
and  that  by  the  act  No.  109.  of  1854,  these  shares  were  forever 
pledged  for  the  payment  of  the  bonds  issued  under  its  provisions ; 
that  the  city  should  therefore  be  compelled  to  pay  out  of  their 
proceeds  so  much  of  the  judgments  as  appears  on  the  face  of  the 
records  to  have  been  rendered  on  the  bonds ;  or,  in  case  their  pav- 
ment  cannot  be  enforced  in  this  way,  that  it  should  be  compelled  to 
levy  and  collect  a  tax  for  that  purpose,  and  also  a  tax  to  pay  so 
much  of  the  judgments  as  was  rendered  upon  bonds  and  coupons 
issued  under  the  act,  No.  108,  of  1854 ;  but  that  the  mayor  and  ad- 
ministrators, who  represent  and  exercise  the  powers  of  the  city, 
refuse  to  pay  the  judgments  out  of  any  funds  in  their  possession 
or  under  their  control,  or  to  levy  a  tax  for  their  payment.  The  re- 
lator therefore  prays  the  court  to  order  them  to  show  cause  why 


l8o  UNITED  STATES  V.   NEW  ORLEANS.  §    4 

a  writ  of  mandamus  should  not  be  issued  compelling  them  to  apply 
the  proceeds  and  to  levy  a  tax  as  mentioned. 

The  order  to  show  cause  was  accordingly  issued;  and  t^iecity 
authorities  appeared  and  filed  answer  to  the  petition,  in  whicntKey~" 
adimtted  the  recover}-  of  the  judgment  by  the  relator, — speaktrignrf 
the  three  judgments  as  one, — the  issue  of  executions  thereon,  and 
their  return  unsatisfied,  the  sale  of  the  eighty  thousand  shares  of  the 
capital  stock  of  the  New  Orleans,  Jackson,  and  Great  Northern 
Railroad  Company  for  $320,000,  and  the  receipt  of  the  money 
bv  their  predecessors,  and  set  up  as  a  defense  to  the  prayer  of  the 
petition  that  the  judgment  was  recovered  upon  certain  bonds  issued 
to  that  company  by  the  city  imder  the  act  of  March  15,  1854,  No.  109, 
making  no  mention  of  the  act  No.  108 ;  that  no  tax  for  the  payment 
of  the  principal  of  the  bonds  is  directed  to  be  levied  by  that  act' 
or  any  other  act  of  the  legislature :  that,  as  respects  the  interest  on 
the  bonds,  provision  is  made  for  its  payment  out  of  the  back  taxes 
due  the  city,  and  inserted  in  its  budget  for  1876;  and  that  the 
proceeds  arising  from  the  sale  of  the  stock  of  the  railroad  company 
are  not  in  the  treasury  of  the  city  or  under  their  control,  having 
been  used  and  expended  by  their  predecessors.  They  therefore 
prayed  that  the  petition  be  dismissed. 

The  relator  demurred  to  this  answer.  The  court  overruled  the 
demurrer  and  refused  the  writ ;  and  from  its  judgment  the  case 
is  brought  to  this  court. 

Mr.  Justice  Field,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

The  iLLdg£_Qf  the  circuit  court  accompanied  the  judgment  with  an 
opinion  giving  the  reasons  of  his  decision,  which  were  substantially 
those  stated  in  the  answer  .of  the  city ;  that  the  statute  authorizing  tlio 
issue  of  the  bonds,  upon  which  the  judgments  were  recovered,  made 
no  provision  for  levying  a  tax  to  pay  the  principal,  but  intended 
that  it  should  be  paid  out  of  the  stock  of  the  railroad  company  and 
its  revenues ;  and  that  the  proceeds  from  the  sale  of  the  stock  had 
been  already  expended  by  the  predecessors  of  the  present  city  author- 
ities. The  court,  adopting  the  view  of  the  city  authorities  as  to  the 
construction  of  the  statute,  and  the  supposed  intention  of  the  legisla- 
ture, proceeded  on  the  principle  that  the  power  of  taxation  belongs 
exchisively  to  the  legislative  branch  of  the  government,  and  that 
the  judiciary  cannot  direct  a  tax  to  be  levied  when  none  is  authorized 
by  the  legislature;  and  that  the  issuing  of  a  mandamus  to  apply 
ihc  proceeds  received  from  the  sale  of  the  stock  would  be  a  futile 
prfKccding,  they  having  been  previously  used  for  other  purposes. 
A  writ,  said  the  court,  could  not  issue  commanding  the  performance 
of  an  admitted  impossibility 

The  position  tliat  the  power  of  .taxation  belongs  exclusively  to 
_ilic  legislative  branch  of  the  government,  no  one   will  controvert. 


§    4       MANDAMUS    TO    MUNICIPAL   CORPORATIONS    AM)   OFFICERS.       l8l 

Under  our  s\stem  it  is  lodged  nowhere  else.  But  it  is  a  power 
that  may  be  (Iclegcited  by  the  legislature  to  municipal  corporations, 
which  are  merely  instrumentalities  of  the  state  for  the  better  admin- 
istration of  the  government  in  matters  of  local  concern.  When 
such  a  corporation  is  created,  the  power  of  taxation  is  vested 
in  it  as  an  essential  attribute,  for  all  the  purposes  of  its  existence, 
unless  its  exercise  be  in  express  terms  prohibited.  For  the  accom- 
plishment of  these  purposes,  its  authorities,  however  limited  the  cor- 
poration, must  have  the  power  to  raise  money  and  control  its  ex- 
penditure. In  a  city,  even  of  small  extent,  they  have  to  provide 
for  the  preservation  of  the  peace,  good  order,  and  health,  and  the 
execution  of  such  measures  as  conduce  to  the  general  good  of  its 
citizens ;  such  as  the  opening  and  repairing  of  streets,  the  construc- 
tion of  sidewalks,  sewers,  and  drains,  the  introduction  of  water, 
and  the  establishment  of  a  fire  and  police  department.  In  a  city  like 
New  Orleans,  situated  on  a  navigable  stream,  or  on  a  harbor  of  a  lake 
or  sea,  their  powers  are  usually  enlarged,  so  as  to  embrace  the 
building  of  whafves  and  docks  or  levies  for  the  benefit  of  commerce, 
and  they  may  also  extend  to  the  construction  of  roads  leading  to 
it,  or  the  contributing  of  aid  toward  their  construction.  The  number 
and  variety  of  \¥orks  that  may  be  authorized,  having  a  regard  to 
the  general  welfare  of  the  city  or  of  its  people,  and  mere  matters 
of  legislative  discretion.  All  of  them  require  for  their  execution 
considerable  expenditures  of  money.  Their  authorization  without 
providing  the  means  for  such  expenditures  would  be  an  idle  and 
futile  proceeding.  Their  authorization,  therefore,  implies  and  carries 
with  it  the  power  to  adopt  the  ordinary  means  employed  by  such 
bodies  to  raise  funds  for  their  execution,  unless  such  funds  are 
otherwise  provided.  And  the  ordinary  means  in  such  cases  is  taxa- 
tion. A  munici£alitywithpi;ttlie  power  of  taxation  would  be  a 
body  witEoutllfe,  incapable  of  acting,  and  serving  no  useful  purr 
pose. 

"For  the  same  reason,  when  the  authority  to  borrow  money  or 
incur  an  obligation  in  order  to  execute  a  public  work  is  conferred 
upon  a  municipal  corporation,,  the  power  to  levy  a  tax  for  its  pay- 
ment or  the  discharge  of  the  obligation  accompanies  it ;  and  this, 
too,  without  any  special  mention  that  such  power  is  granted.  This 
arises  from  the  fact  that  such  corporations  seldom  possess — so  sel- 
dom, indeed,  as  to  be  exceptional — any  means  to  discharge  their 
pecuniary  obligations  except  by  taxation.  "It  is  therefore  to  be  in- 
ferred," as  observed  by  this  court  in  Loan  Association  v.  Topeka, 
20  Wall.  (U.  S.)  660,  "that  when  the  legislature  of  a  state  author- 
ises a  county  or  a  city  to  contract  a  debt  by  bond,  it  intends  to  author-^ 
ize  it  to  levy  such  faxes  as  arc  necessary  to  pay  the  debt,  unless 
there  is  the  act  itself,  or  in  some  general  statute,  a  limitation  upon 
the  power  of  taxation  which  repels  such  an  inference. 


1 82  UNITED  STATES  V.  NEW  ORLEANS.  §    4 

The  doctrine  here  stated  is  asserted  by  the  Supreme  Court  of 
Pennsylvania  in  Commonwealth  v.  Commissioners  of  Allegheny 
County,  'i,'/  Pa.  277.  That  county  was  authorized  by  an  act  of  the 
legislature  to  subscribe  to  the  capital  stock  of  a  railroad  company, 
and  to  issue  its  bonds  in  payment  therefor.  The  interest  of  them 
being  unpaid,  a  writ  of  mandamus  was  applied  for  to  compel  the 
commissioners  of  the  county  to  make  provisions  to  pay  it.  The  re- 
turn of  the  officers  set  up,  among  other  objections  to  the  writ,  that 
the  act  authorizing  the  subscription  and  issue  of  the  bonds  provided 
no  means  of  payment,  either  of  the  principal  or  the  interest.  To  this 
defense  the  court  said :  "The  act  of  1843  authorized  subscriptions 
by  certain  counties  to  be  made  as  "fully  as  an  individual  could  do", 
without  prescribing  more  precisely  the  terms.  But  by  the  fifth  section 
of  the  act  of  April  18,  1843,  counties  subscribing  are  authorized  to 
borrow  money  to  pay  for  such  subscriptions.  We  have  decided  that 
bonds  or  certificates  of  loan  issued  by  a  municipal  corporation  is  an 
ordinary  and  appropriate  mode  of  borrowing  money  and  the  act  of 
1853  expressly  authorized  the  issue  of  such  securities.  The  sub- 
scriptions were  accordingly  made,  and  the  bonds  issued.  Thus  was 
a  lawful  debt  incurred  by  the  county ;  and  as  no  other  than  the  or- 
dinary mode  of  extinguishing  it,  or  of  paying  the  interest  thereon, 
was  provided,  it  follows,  of  course,  that  the  ordinary  mode  of  raising 
the  means  must  be  resorted  to ;  namely,  to  provide  for  it,  in  the  an- 
nual assessment  of  taxes  for  county  purposes."  Again,  in  the  same 
case,  the  court  said :  "In  the  next  place,  it  is  averred  that  there  is 
no  authority  to  levy  a  tax  for  the  payment  of  the  interest  by  the 
county.  We  have  already  treated  of  this,  and  said  thatjthe  authority 
tc  create  the  debt  implies  an  obligation  to  pay  it ;  and  when  no  spe- 
cial mode  of  doing  so  is  provided,  it  is  also  to  be  implied  that  it  is  to 
be  done  in  the  ordinary  way, — by  the  levy  and  collection  of  taxes." 

In  numerous  cases,  similar  language  is  found  in  opinions  of  the 
state  courts,  not  required,  perhaps,  to  decide  the  point  in  judgment 
therein,  but  showing  a  recognition  of  the  doctrine  stated.  Thus,  in 
Lowell  v.  Boston,  iii  Mass.  460,  the  Supreme  Court  of  Massachu- 
setts, in  speaking  of  bonds  which  the  legislature  had  authorized  the 
city  of  Boston  to  issue,  in  order  to  raise  funds  to  be  loaned  to  indi- 
viduals to  aid  them  in  rebuilding  that  portion  of  the  city  which  was 
burned  in  the  great  fire  of  November,  1872,  said:  "The  issue  of 
bonds  by  the  city,  whatever  provision  may  be  made  for  their  redemp- 
tion, involves  the  possible  and  not  improbable  consequence  of  a 
necessity  to  provide  for  their  payment  by  the  city.  The  right  to 
incur  the  obligatif)n  implies  the  right  to  raise  money  by  taxation 
for  payment  of  the  bonds;  or,  what  is  equivalent,  the  right  to  levy 
a  tax  for  the  purposes  for  which  the  fimd  is  to  be  raised  by  means 
of  the  honfls  so  authorized.  To  the  same  purport  is  the  language  of 
the  Supreme  Court  of  Wisconsin  in  TTasbrouck  v.  Milwaukee,  25 


§    4       MANDAMUS   TO    MUNICIPAL   CORPORATIONS    AND   OFFICERS.       183 

Wis.  122.  And  in  the  recent  case  of  Parsons  v.  City  of  Charleston, 
in  the  United  States  Circuit  Court,  the  chief  justice  gave  emphatic 
affirmation  to  the  doctrine.  Hughes,  282.  Indeed,  it  is  always  to  be 
assumed,  in  the  absence  of  .clear  restrictive  provisions,  that  when  the 
legislature  grants  to  a  city  the  pozver  to  create  a  debt,  it  intends  that 
the  city  shall  pay  it,  and  that  the  payment  shall  not  be  left  to  its 
caprice  or  pleasure.  When,  therefore,  the  power  to  contract  a  debt 
is  conferred,  it  must  be  held  that  a  corresponding  pozver  of  provid- 
ing for  its  payment  is  also  conferred.  The  latter  is  implied  in  the  I 
grant  of  the  former,  and  such  implication  cannot  be  overcome  ex-' 
cept  by  express  zvords  excluding  it. 

In  the  present  case,  the  indebtedness  of  the.  city  of  New  Orleans 
is  conclusively  established  by  the  judgments  recovered.  The  valid- 
ity of  the  bonds  upon  which  they  were  rendered  is  not  now  open  to 
question.  Nor  is  the  payment  of  the  judgments  restricted  to  any 
species  of  property  or  revenues,  or  subject  to  any  conditions.  The 
indebtedness  is  absolute.  If  there  were  any  question  originally  as 
to  a  limitation  of  the  means  by  which  the  bonds  were  to  be  paid,  it  is 
cut  off  from  consideration  now  by  the  judgments.  If  a  limitation 
existed,  it  should  have  been  insisted  upon  when  the  suits  on  the 
bonds  were  pending,  and  continued  in  the  judgments.  The  fact  that 
none  is  thus  continued  is  conclusive  on  this  application  that  none 
existed. 

"Owing  the  debt,  the  city  has  the  power  to  levy  the  tax  for  its 
payment.  By  its  charter,  in  force  when  the  bonds  were  issued,  it 
was  invested  in  express  terms,  'with  all  the  powers,  rights,  privi- 
leges, and  immunities  incident  to  a  municipal  corporation  and  neces- 
sary for  the  proper  government  of  the  same.'  " 

As  already  said,  the  power  of  taxation  is  a  power  incident  to  such 
a  corporation,  and  may  be  exercised  for  all  the  purposes  authorized 
by  its  charter  or  subsequent  legislation.  Whatever  the  legislature 
empowers  the  corporation  to  do  is  presumably  for  its  benefit,  and 
may,  in  "the  proper  government  of  the  same,"  be  done.  Hard.ng  the  . 
power  to  levy  the  tax  for  the  payment  of  the  judgments  of  the  re- 
"Tator,  it  was  the  duty  of  the  city,  through  its  authorities,  to  exercise 
the  power.  The  payment  was  not  a  matter  resting  in  its  pleasure, 
but  a  duty  which  it  owed  to  the  creditor.  Having  neglected  this^ 
duty,  the  case  was  one  in  which  a  mandamus  should  have  been  is- 
sued to  compel  its  performance.  Knox  County  v.  Aspinwall,  24 
How.  (U.  S.)  376;  Von  Hoffman  v.  City  of  Quincy,  4  Wall.  (U.  S.) 
535;  Benbow  v.  Iowa  City,  7  id.  313;  Supervisors  v.  Rogers,  id. 
175;  Supervisors  v.  Durant,  9  id.  415;  County  of  Cass  v.  Johnston, 
95^  U.  S.  360. 

The  judgment  of  the  court  below  must,  therefore  be  reversed, 
and  the  cause  remanded  with  directions  to  issue  the  writ  as  prayed 
in  the  petition  of  the  relator ;  and  it  is  so  ordered. 


l84  UNITED   STATES   V.    BURLINGTON.  §    4 

See  also  Ralls  Co.  Ct.  v.  United  States.  105  U.  S.  733;  Eufaula  v.  Hick- 
man, 57  Ala.  338;  Meyer  v.  Brown,  65  Cal.  583;  People  v.  Getzendaner, 
137  111.  234;  Flagg  V.  City  of  Palmyra,  li^  Mo.  440;  Commonwealth  v. 
Pittsburgh,  34  Pa.  496;   State  v.   Beloit,  20  Wis.  85. 

The  proper  remedy  to  enforce  the  payment  of  a  judgment  against  a 
municipal  corporation  is  Mandamus  to  compel  the  levy  of  a  tax  to  pay  such 
judgment. 

See  United  States  v.  Lee  Co.,  2  Biss.  (U.  S.)  77;  Nelson  v.  St.  Martin, 
III  U.  S.  716;   State  V.  Hug,  44  Mo.   116. 


UNITED  STATES  ex  rel.  LEARNED  v.  BURLINGTON. 

1863.     United  States  Circuit  Court  for  the  District  of  Iowa. 
2  Am.  Law  Reg.  (N.  S.)  394,  24  Fed.  Cas.  1302. 

Miller,  Circuit  Justice.  The  plaintiff,  having  recovered  against 
the  city  of  Burlington  a  judgment  in  the  district  court  of  the  United 
States  for  the  state  of  Iowa,  and  having  issued  execution  which  was 
returned  nitlla  bona,  applied  to  that  court  for  a  writ  of  mandamus, 
requiring  the  mayor  and  aldermen  of  said  city  to  levy  a  special  tax 
tor  the  payment  of  said  judgment.  The  cause  being  of  that  class 
which,  by  the  act  creating  this  court,  is  transferred  into  it,  the  ap- 
plication is  now  made  here  for  the  peremptory  writ. 

The  defendants,  who  have  been  served  with  notice,  make  answer 
under  oath,  to  the  information,  and  set  tip,  substantially  the  follow- 
ing reasons  why  the  writ  should  not  be  granted:  ist.  That  the 
courts  of  the  federal  government  have  no  jurisdiction  to^ issue  a  writ 
of  mandamus  to  persons  whose  functions  are  created  by  state  law, 
such  officers  being  resj^onsible  alone  to  state  authority,  so  far  as  this 
writ  is  concerned.  2d.  That  there  is  nothing  in  the  ordinance  or 
contract,  by  which  the  debt  was  created,  which  requires  that  any 
specific  tax  shall  be  levied  for  the  payment  of  this  debt.  3d.  That  by 
the  charter  of  the  city  of  Burlington,  no  greater  tax  than  one  percent 
];er  annum  can  be  levied  on  the  ta.xable  property  of  the  city,  and  that 
the  authorities  have  levied  a  tax  of  that  amount  for  the  present  year. 

The  plaintiff  objects,  by  way  of  demurrer,  to  the  .sufficiency  of 
the  matters  thus  set  up  in  the  answer,  which  may  be  treated  as 
standing  in  the  place  of  a  return  to  an  alternative  writ. 

1.  If  there  were  any  doubt  as  to  the  power  of  the  federal  courts 
to  use  the  writ  of  mandamus  in  cases  of  this  character,  the  question 
is  settled  in  favor  of  the  existence  of  that  jiower  by  the  case  of  Com- 
missif)ncrs  of  Knox  County  v.  Aspinwall,  24  How.  (U.  S.)  376. 
The  first  objection  is  therefore  mitenablc. 

2.  In  reply  to  the  second  objection  it  is  claimed  by  i")laintiff  that 
in  the  ordinance  for  borrowing  money,  under  which  the  debt  was 
contracted,  cjn  winch  the  judgment  was  rendered,  there  is  a  provision 


§    4       MANDAMUS    TO    MUNICIPAL   CORPORATIONS    AND   OFFICERS.       185 

for  levying  a  specific  tax  for  the  payment  of  the  debt  and  interest. 
The  language  of  the  ordinance  on  this  subject  is  as  follows:  "Be  it 
further  enacted,  that  it  shall  be  the  duty  of  the  city  council  of  said 
city  to  provide  means  to  meet  the  payment  of  said  bonds  and  cou- 
pons, when  the  same  may  become  due,  according  to  the  contract  en- 
tered into  for  said  loan  and  to  pay  the  same."  Does  this  language 
imply  an  agreement  to  levy  a  special  tax  separate  from  other  taxes 
or  other  resources  of  the  city,  for  the  payment  of  this  debt?  Or 
does  it  imply  that  out  of  the  various  resources  of  the  city,  its  gen- 
eral annual  tax,  its  wharfage,  its  licenses,  or  its  power  to  borrow 
money,  some  means  will  be  provided  by  the  city  authorities  for  that 
purpose?  The  latter  seems  to  be  the  more  reasonable  construction 
of  the  ordinance.  The  plaintiff,  however,  urges  that  by  §§  1895- 
1897,  Code  (Revision  i860,  §  3274  et  scq.),  it  is  made  the  duty  of  the 
mayor  and  aldermen  of  the  city  to  levy  a  tax  for  the  special  pur- 
pose of  paying  this  debt,  and  to  see  that  it  is  collected  and  appro- 
priated to  that  purpose,  and  that  this  duty  should  be  enforced  by 
mandamus.  These  sections  do  provide  that  in  cases  where  a  judg- 
ment has  been  recovered  against  a  city  or  any  other  civil  corpora- 
tion, and  no  property  is  found  on  which  to  levy  execution,  that  "a 
tax  must  be  levied  as  early  as  practicable,  sufficient  to  pay  off  the 
judgment  with  interest  and  costs."  The  case  of  State  v.  Judge  of 
Floyd  Co.,  5  Iowa  380,  seems  to  intimate  pretty  strongly  that  in  such 
a  case  if  the  tax  was  not  levied,  a  sufficient  remedy  is  provided  by 
section  1897,  in  the  personal  responsibility  of  the  ofificers  who  should 
refuse  to  make  the  levy.  From  the  view  taken  of  the  present  case 
by  the  court,  it  is  not  necessary  to  decide  this  point. 

3.  It  is  true,  as  claimed  by  the  defendant,  that  the  mayor  and 
aldermen  of  Burlington  have  no  legal  authority  to  levy  any  tax  on 
property  liable  to  taxation,  exceeding  one  percent  per  annum,  and 
that  they  have  levied  a  tax  of  that  amount  for  the  present  year,  it  is 
clear  that  this  court  cannot  compel  them  to  levy  an  additional  tax. 
The  only  statutory  provisions  on  that  point,  brought  to  the  attention 
of  the  court,  or  which  it  has  been  able  to  find,  are  the  first  section  of 
the  act  of  February  22d,  1847  (Laws  1846-1847,  p.  91),  to  amend 
the  charter  of  the  city  of  Burlington,  and  the  first  section  of  the  act 
of  January  22d.  1853,  to  amend  said  charter.  By  the  act  first  men- 
tioned it  is  declared,  "that  the  amount  of  tax  to  be  levied  upon  real 
and  personal  estate  by  the  mayor  and  aldermen  of  the  city  of  Bur- 
lington, after  the  taking  effect  of  this  act,  shall  not  exceed  12  J/ 
cents  on  every  one  hundred  dollars'  worth  of  property  to  be  as- 
sessed." This  is  one-eighth  of  one  percent.  The  act  of  1853  says, 
"That  to  defray  the  current  expenses  of  said  city,  the  city  council 
shall  have  power  to  lew  and  collect  taxes  on  all  the  real  and  personal 
property  in  said  city,  not  exempted  by  general  laws  from  taxation  ; 
provided,  that  the  amount  of  tax  levied  for  said  purpose  shall  not 


l86  UNITED   STATES    V.    BURLINGTON.  §    4 

in  any  year  exceed  one  dollar  on  each  one  hundred  dollars'  worth  of 
property  taxed." 

The  result  of  these  two  sections  considered  alone  would  seem  to 
be  that  except  for  the  purpose  of  defraying  the  current  expenses  of 
the  citv,  the  tax  cannot  exceed  one-eighth  of  one  percent,  and  can- 
not, for  any  or  all  purposes,  exceed  one  percent.  Do  the  provisions 
of  sections  1S95,  1896,  and  1897  of  the  Code  repeal  the  above  sec- 
tions of  the  city  charter,  or  do  they  override  them  when  brought 
into  question  together,  or  is  there  any  necessary  conflict  between 
them  ?  There  is  certainly  no  express  repeal,  and  the  Code  could  not 
be  intended  by  implication  to  repeal  the  section  last  quoted,  for  it 
was  passed  since  the  Code  became  the  law  of  the  land.  The  rule 
also  is  well  understood,  that  a  repeal  by  implication  can  only  arise 
when  that  is  the  necessary  inference  from  the  impossibility  that  both 
of  the  acts,  supposed  to  be  in  conflict,  can  stand.  If  either  act  is  to 
override  the  other,  or  repeal  the  other,  certainly  the  later  expression 
of  the  legislative  will  must  stand  in  preference  to  the  former.  But 
in  the  present  case  there  is  no  such  conflict.  The  provision  of  the 
Code  can  have  its  effect  by  compelling  the  city  council  to  levy  the 
tax  so  far  as  it  has  power  to  levy  it.  The  provisions  of  the  charter 
can  stand  as  they  were  intended,  as  a  useful  and  just  limitation  of 
that  power.  The  previous  year  to  this  the  city  council  of  Burlington, 
as  appears  by  the  answer  in  the  case,  only  levied  a  tax  of  one-half 
percent.  Undoubtedly  if  this  was  found  to  be  inadequate  to  meet 
the  current  expenses,  and  to  provide  a  fund  to  meet  the  judgment, 
it  was  the  duty  of  the  council  under  section  1897  of  the  Code,  to  so 
increase  the  tax,  inside  of  one  percent,  as  to  raise  that  fund  if  it 
could  be  so  done.  This  they  aver  they  have  now  done,  to  the  full  ex- 
tent of  their  authority,  and  this  court  will  not  order  them  to  exceed 
it.  That  this  is  a  sound  view  of  the  intention  of  the  framers  of  the 
Code  is  to  be  strongly  inferred,  from  some  of  the  provisions  on  the 
subject  of  town  and  city  corporations.  Chapter  42  is  devoted  to  pro- 
viding the  manner  in  which  the  citizens  of  a  village  or  a  town  may 
organize  themselves  into  a  corporation,  and  may  either  assume  the 
privileges  and  responsibilities  of  towns  or  cities  according  to  the 
number  of  their  po])ulation.  In  speaking  of  a  town  charter  thus 
adopted,  it  says,  §  665,  that  it  may  give  powers  to  establish  by-laws, 
opflinanccs,  etc.,  and  "'to  levy  and  collect  taxes  on  all  property  within 
the  limits  of  such  corporation  which  by  the  laws  of  the  state  is  not 
exempt,  for  all  purposes,  from  taxation,  which  tax  must  not  exceed 
one  percent  per  annum  on  the  assessed  value  thereof,"  and  section 
^/k)  says  that  "the  preceding  sections  are  applicable  to  a  town  desir- 
ing to  become  organized  as  a  city."  Now  these  are  the  very  corpo- 
rations mentioned  in  sections  1895  to  1807  inclusive,  of  which  it  is 
.said  that  a  tax  nuist  be  levied  to  pay  a  judgment  recovered  against 
thcin.     Wr'is  it  meant  thai  ihcv  shnnld  ribsfiliitel\-.  at  once,  lew  a  tax 


§    4       MAN1>A.MUS   TO    MUNICIPAL    CORPORATIONS    AND    OFFICERS.       iSj 

sufficient  to  pa\-  the  debt  without  regard  to  the  one  percent  Hmita- 
tion  in  the  previous  sections  ?  Or  was  it  meant  that  they  should  use 
such  taxing  power  as  they  had  for  that  purpose,  and  no  more?  If 
the  former  is  the  sound  construction,  then  the  limit  upon  the  taxing 
power  is  nugatory,  and  it  makes  no  difference  how  strongly  the  legis- 
lature, or  the  charter  adopted  by  the  people,  may  forbid  excessive 
taxation,  the  authorities  of  the  city  may,  by  resorting  to  the  powers 
to  make  contracts,  impose  upon  the  property-holders  a  tax  unlimited 
in  amount  or  duration.  The  wisdom  of  that  provision  in  the  Code, 
and  in  the  charter  of  the  city  of  Burlington,  has  been  amply  vindi- 
cated by  events  occurring  since  their  enactment,  and  they  should  not 
lightly  be  set  aside. 

■  As  it  appears  then  to  the  court  that  the  city  authorities  have  al- 
ready levied  for  the  present  year^"aTax  a^  'I'Sifgt  as  the  law  permits,' 
no  writ  of  mandamus  can  rightfully  issue  to  compel  them  to  levy 
more.     The   demurrer  of  plaintiff  being  to  the   whole  answer,   is 
"Overruled,  and  the  application  for  a  writ  of  mandamus  is  refused. 

The  above  case  was  reversed  in  the  154  U.  S.  568  (4  Sup.  Ct.  1215).  See 
preceding  case,  United  States  v.  Muscatine,  19  Sup.  Ct.,  and  especially  the 
vigorous    dissenting   opinion    of   Justice    Miller   therein. 

The  weight  of  authority  today  holds  that  Mandamus  will  not  lie  to 
compel  the  levy  of  taxes  above  the  amount  or  the  rate  limited  by  the 
legislature.  United  States  v.  Macon  Co.  Ct.,  99  U.  S.  582 ;  In  re  M.  E. 
Church,  66  N.   Y.  395;   Young  v.  Lane,  43   Neb.   813. 

In  the  Federal  Courts  Mandamus  will  not  issue  until  after  a  valid  judg- 
ment for  the  debt.     Heine  v.  Levee  Commissioners,  19  Wall.   (U.  S.)   655. 


4.     To  compel  the  making  of  public  improvements. 

RICHARDS  ET  AL.  V.  COUNTY  COMMISSIONERS  OF 

BRISTOL. 

1876.     Supreme  Judicial  Court  of  Massachusetts. 
120  Mass.  401. 

Colt,  J.  The  petitioners  ask  for  a  writ  of  mandamus,  requiring 
the  county  commissioners  to  construct  and  complete  parts  of  Main 
Street  and  Elm  Street  in  the  town  of  Attleborough,  w'hich  the  peti- 
tion states  they  had  widened,  straightened  and  located  anew,  but 
which  the  town  had  refused  to  make  and  complete  under  the  com- 
missioners' orders. 

The  answer,  signed  by  the  commissioners,  admits  the  facts  stated 
in  the  petition;  but  denies  that  the  roads  in  question  were  highways 
or  county  roads  at  the  time  of  the  order,  averring  that  Elm  Street 


l88  RICHARDS  V.   COUNTY  COMMISSIONERS.  §    4 

was  a_cO\vn  way  ;  and,  as  to  Main  Street,  referring  to  the  case  of 
flayden  v.  Attleborongh,  7  Gray  (Mass.)  338,  for  the  facts  con- 
nected with  its  origin  and  history.  Main  Street  appears  from  the 
report  in  that  case  to  have  been  originally  a  part  of  the  Norfolk  and 
]^)ristol  Turnpike,  which  the  towns  were  authorized,  upon  the  sur- 
render of  the  charter  of  that  corporation,  to  lay  out  as  a  common 
highway,  provided  the  county  did  not.  The  town  of  Attleborongh 
voted  to  accept  the  turnpike  as  a  highway,  and  authorized  its  select- 
men to  lay  it  out.  It  was  so  laid  out,  and  a  record  of  it  made  by  the 
selectmen.  The  Stat,  of  1843,  c.  54,  under  which  this  was  done, 
thus  gave  to  the  towns  the  power  to  change  the  highway  from  a 
turnpike  to  a  county  road.  The  road  was  located  originally  through 
several  towns  in  adjoining  counties,  and,  from  the  time  of  the  sur- 
render of  its  charter  by  the  turnpike  corporation,  to  the  filing  of  this 
answer  in  September,  1875,  it  was  continued  to  be  used  as  a  highway 
for  public  travel. 

It  seems  to  be  assumed,  in  the  discussion  in  Hayden  v.  Attlebor- 
ongh, iibi  supra,  that  the  action. of  the  town  was  not  legally  effect- 
ual to  continue  the  road  as  a  public  highway.  But  whether  it  was 
or  not,  it  is  plain  that  there,  is  nothing  to  control  the  presumption, 
which  now  arises  from  the  facts  disclosed,  that  at  the  time  of  its  re- 
location the  street  has  become  a  public  highway  by  prescription.  It 
is  not  the  case  of  a  road  opened  and  dedicated  to  the  public  use  by 
the  owner,  to  which  the  provisions  of  the  statute  of  1846,  c.  203  ;  Gen. 
Stat.,  c.  43,  §  82 ;  are  applicable.  It  was  rather  a  continuance  of  the 
road  as  a  highway  by  the  compliance,  or  at  least  an  attempted  com- 
pliance, with  the  peculiar  provisions  of  a  special  statute ;  and  this, 
if  followed  by  actual,  general  uninterrupted  public  use  for  the  time 
slated,  is  enough  to  establish  a  highway.  Jennings  v.  Tisbury,  5 
Gray  (Mass.)  73. 

Under  our  statutes,  the  commissioners  are  authorized  to  locate 
anew  any  road  laid  out  by  the  authority  of  a  town  or  otherwise, 
cither  for  the  purpose  of  establishing  the  boundaries,  or  of  making 
alterations  in  the  course  or  the  width  of  the  same,  and  they  may  as- 
sess the  expense  upon  the  petitioners,  or  upon  the  town  or  the 
county.  Gen.  Stat.,  c.  43,  §  12.  They  have  power  to  change  the 
grade  of  the  road,  and  to  order  the  construction  rendered  necessary 
by  the  alterations  ordered  in  its  course  and  width.  Hyde  Park  v. 
County  Commissioners,  117  Mass.  416.  And,  after  a  highway  has 
thus  been  cstabli.shed  and  its  construction  ordered  by  thcni^if  a  town, 
whose  duty  it  is  to  make  such  highway  or  a  part  thereof,  shall  fail 
to  make  it  within  the  time  prescribed,  the  commissioners  are  re- 
quired to  conii)letc  it  as  soon  as  may  1x"  thereafter.  A_public  duty  is 
thus  imposed  \ipon  them  for  j)u]ilic  reasons,  in  the  exercise  of  which 
ttrofe  is  no  discretion  left  to  them.  The  action  of  the  commissioners 
Hi  the  relocatir)ti  of  these  streets,  and  in  the  improvements  ordered, 


§    5  MANDAMUS  TO  PRIVATE  CORPORATIONS.  189 

is  not  open  to  legal  objection  ;  and  it  is  their  duty  now  to  complete 
the  construction  ordered. 

Mandamus  to  issue  accordingly. 

See  also,  People  v.  Supervisors  of  San  Francisco,  36  Cal.  595 ;  People 
V.  Common  Council  of  Brooklyn,  22  Barb.  (N.  Y.)  404;  Commissioners 
V.    Commonwealth,  y2   Pa.    St.   24;    Brokaw   v.   Commissioners,    130   111.   482. 

See    contra,    Reading   v.    Commonwealth,    11    Pa.    St.    196. 


Section  5. — Mandamus  to  Private  Corporations. 

I.     To  com]Kl  the  performance  of  duties  due  to  the  public,  and 
to  third  parties. 

— See  Mobile,  etc.,  R.  Co.  v.  Wisdom,  5  Heisk.  (Tenn.)  125. 
Supra,  p.  20. 

PEOPLE  V.  NEW  YORK  CENTRAL,  etc.,  R.  CO. 

1883      Supreme  Court  of  the  State  of  New  York. 
28  Hun.  (N.  Y.)  543. 

(APPE.A.L  from  orders  granting  motion  to  quash,  and  denying  ap- 
plication by  the  attorney  general  for  a  peremptory  writ  of  manda- 
mus, commanding  the  railroad  company  to  forthwith  operate  their 
road,  and  receive  and  transport  freight  as  usual.  The  company's  ex- 
cuse for  not  doing  so  since  June,  1882,  was  a  strike  of  its  employees 
for  higher  wages  not  alleged  to  be  accompanied  by  violence,  riot  or 
other  unlawful  interference.) 

Davis,  P.  J.  The  question  presented  by  the  motion  is  one  of 
sig"nal  importance.  Tt  is  whether  the  people  of  the  state  can  invoke 
the  power  of  the  courts  to  compel  the  exercise  by  railroad  corpora- 
tions of  the  most  useful  public  functions  with  which  they  are 
clothed.  If  the  people  have  that  right,  there  can  be  no  doubt  that 
their  attorney  general  is  the  proper  officer  to  set  it  in  efifective  opera- 
tion in  their  behalf.  T  Rev.  Stat.  179,  §  i :  Code  of  Civil  Procedure, 
§  1993 ;  People  v.  Halsev,  37  N.  Y.  3A4:  People  v.  Collins,  19  Wend. 
(N.  Y.)  56." 

The  question  involves  a  consideration  of  the  nature  of  this  class 
of  corporations,  the  objects  for  which  they  are  created,  the  powers 
conferred  and  the  duties  imposed  upon  them  by  the  laws  of  their 
creation  and  by  the  state.  As  bodies  corporate,  their  ownership  may 
be  and  usually  is  altogether  private,  belonging  wholly  to  the  holders 
of  their  capital  stock ;  and  their  management  may  be  vested  in  such 


190  PEOPLE  V.   NEW  YORK  CENTRAL,  ETC.   R.   CO.  §    5 

officers  or  agents  as  the  stockholders  and  directors  under  the  pro- 
visions of  law  may  appoint.  In  this  sense,  they  are  to  be  regarded 
as  trading  or  private  corporations,  having  in  view  the  profit  or  ad- 
vantages of  the  corporators.  But  these  conditions  are  in  no  just 
sense  in  conflict  with  their  obligations  and  duties  to  the  public.  The 
objects  of  their  creation  are  from  their  very  nature  largely  different 
from  ordinary  private  and  trading  corporations.  Railroads  arc,  in^ 
every  essential  quality,  public  highways,  created  for  public  use',"^t 
permitted  to  be  ozvned,  controlled,  and  managed  by  private  persons. 
But  for  this  quality  the  railroads  of  the  respondents  could  not  exist 
lawfully.  Their  construction  depended  upon  the  exercise  of  the 
right  of  eminent  domain,  which  belongs  to  the  state  in  its  corporate 
capacity  alone,  and  cannot  be  conferred  except  upon  a  ''public  use." 
The  state  has  no  power  to  grant  the  right  of  eminent  domain  to 
any  corporation  or  person  for  any  other  than  a  public  use.  Every 
attempt  to  go  beyond  that  is  void  by  the  constitution ;  and  although 
the  legislature  may  determine  what  is  a  necessary  public  use,  it  can- 
not by  any  sort  of  enactment  divest  of  that  character  any  portion  of 
the  right  of  eminent  domain  which  it  may  confer.  This  character- 
istic of  public  use  is  in  no  sense  lost  or  diminished  by  the  fact  that 
the  use  of  the  railroad  by  the  corporation  which  constructs  or  owns 
it  must  from  its  nature  be  exclusive.  That  incident  grows  out  of 
the  method  of  use  which  does  not  admit  of  any  enjoyment  in  com- 
mon by  the  public.  The  general  and  popular  use  of  a  railroad  as  a 
highway  is,  therefore,  handed  over  exclusively  to  corporate  man- 
jigement  and  control,  because  that  is  for  the  best  and  manifest  ad- 
vantage of  the  public. 

In  Olcott  V.  Supervisors,  i6  Wall.  (U.  S.)  678,  694,  the  Supreme 
Court  of  the  United  States  adjudge: 

"Whether  the  use  of  a  railroad  is  a  public  or  a  private  one,  de- 
pends in  no  measure  upon  the  question  who  constructed  it  or  who 
owns  it.  ■  It  has  never  been  considered  a  matter  of  any  importance 
that  the  road  was  built  by  the  agency  of  a  private  corporation.  No 
matter  who  is  the  agent,  the  function  performed  is  that  of  the  state. 
Though  the  ownership  is  private,  the  use  is  public.  The  owners 
may  be  private  companies,  but  they  are  compellable  to  permit  the  pub- 
lic to  use  their  works  in  the  manner  in  which  such  works  can  be 
used.  That  all  persons  may  not  put  their  own  cars  upon  the  road, 
anrl  use  ihcir  own  motive  power,  has  no  bearing  upon  the  question 
whether  the  road  is  a  public  highway.  It  bears  only  upon  the  mode 
of  use,  of  which  the  legislature  is  the  exclusive  judge." 

The  mniiitenanre  and  control  of  most  othe'r  classes  of  public 
highways  are  so  devolved  (upon  public  officers),  and  the  perform- 
ance of  every  official  duty  in  respect  of  them  may  be  compelled  by 
the  courts,  on  appHcilion  of  ihe  state,  while  private  damages  may 
also  l>e  recoverable   fur  individual  injuries.     The  analogy  between 


§    5  .MANDAMUS  TO   I'KIVATE  COKl'UKATIONS.  I9I 

such  officials  and  railroad  corporations  in  regard  to  their  relation  to 
the  state,  is  strong  and  clear,  and  so  far  as  it  affects  the  construction 
and  proper  and  efficient  maintenance  of  their  railways  will  be  ques- 
tioned by  no  one.  It  is  equally  clear,  we  think,  in  regard  to  their 
duties  as  carriers  of  persons  and  property.  This  springs  sharply  out 
of  the  exclusive  nature  of  their  right  to  do  these  things.  Onj:)iher^ 
public  highways  ever}-  person  may  be  his  own  carrier;  or  he  may 
hire  whomsoever  he  will  to  do  that  service.  Between  him  and  such 
employee  a  special  and  jiersonal  relation  exists,  independent  of  any 
public  duty,  and  in  which  the  state  has  no  interest.  In  such  a  case, 
the  carrier  has  not  contracted  with  the  state  to  assume  the  duty  as  a 
public  trust,  nor  taken  the  right  and  power  to  do  it  from  the  state 
liy  becoming  the  special  donee  and  depositary  of  a  trust.  A.  good 
reason  may,  therefore,  be  assigned  why  the  state  will  not  by  man- 
damus enforce  the  performance  of  his  contract  by  such  a  carrier.  ' 
But  the  reason  for  such  a  rule  altogether  fails  when  the  public  high- 
way is  the  exclusive  property  of  a  body  corporate,  which  alone  has 
power  to  use  it,  in  a  manner  which  of  necessity  "requires  that  aH"" 
management,  control,  and  user  for  the  purposes  of  carriage  must  be 
limited  to  itself,  and  which,  as  a  condition  of  the  franchise  that 
grants  absolute  and  exclusive  power  over  and  user  of  a  public  high- 
way, has  contracted  with  the  state  to  accept  the  duty  of  carrying  all 
persons  and  property  within  the  scope  of  its  charter,  as  a  public 
trust. 

The  relation  of  the  state  to  such  a  body  is  entirely  different  from 
that  which  it  bears  to  the  individual  users  of  a  common  highway, 
as  between  whom  and  the  state  no  relation  of  trust  exists;  and 
there  is  small  reason  for  seeking  analogies  between  them.  It  is  the 
duty  of  the  state  to  make  and  maintain  public  highways.  That  duty 
it  performs  by  a  scheme  of  laws,  which  set  into  operation  the  func- 
tions of  its  political  divisions  into  counties,  towns,  and  other  muni- 
cipalities, and  their  officers.  It  can  and  does  enforce  those  duties 
Vv'hen  necessary  through  the  courts.  It  is  not  the  duty  of  the  state  to 
be  or  become  a  common  carrier  upon  its  public  highways ;  but  it 
may,  in  some  cases,  assume  that  duty,  and  whenever  it  lawfully  does 
so,  the  execution  of  that  duty  may  be  enforced  against  the  agents  or 
officers  upon  whom  the  law  devolves  it.  It  may  grant  its  power  to 
construct  a  public  highway  to  a  corporation  or  an  individual  and 
with  that  power  the  right  of  eminent  domain  in  order  to  secure  the 
public  use ;  and  may  make  the  traffic  of  the  highway  common  to  all 
on  such  terms  as  it  may  impose.  In  such  case  it  is  its  duty  to  secure 
that  common  traffic,  when  refused,  by  the  authority  of  its  courts. 
People  v.  Collinsj  19  Wend.  (N.  Y.)  56;  People  v.  Commissioners 
of  Salem,  i  Cow.  (N.  Y.)  23.  Or  it  may  grant  the  same  powers  of 
construction  or  maintenance  with  the  exclusive  enjoyment  of  use 
which  the  manner  of  use  requires,  and  if  that  excludes  all  common 


192  PEOPLE  V.    NEW   YORK  CENTRAL,  ETC.   R.   CO.  §    5 

travel  and  transportation  it  may  impose  on  the  corporation  or  per- 
son the  duty  to  furnish  every  requisite  facihty  for  carrying  passen- 
gers and  freight,  and  to  carry  both  in  such  manner  and  at  such  times 
as  public  needs  may  require.  Why  is  that  duty,  in  respect  of  the 
power  to  compel  its  performance  through  the  courts,  not  in  the  cate- 
gorv  of  all  others  intrusted  to  such  a  body  ?  The  writ  of  mandamus 
has  been  awarded  to  compel  a  company  to  operate  its  roads  as  one 
continuous  line.  Union  Pacific  R.  Co.  v.  Hall,  91  U.  S.  343;  to  com- 
pel the  running  of  the  passenger  trains  to  the  terminus  of  the  road, 
State  V.  Hartford,  etc.,  R.  Co.,  29  Conn.  538 ;  to  compel  the  com- 
pany to  make  cattle  guards  and  fences,  People  ex  rel.  Garbutt  v. 
Rochester  State  Line  R.  Co.,  76  N.  Y.  294;  to  compel  it  to  build  a 
bridge,  People  ex  rel.  Kimball  v.  Boston,  etc.,  R.  Co.,  70  N.  Y.  569; 
to  compel  it  to  construct  its  road  across  streams,  so  as  not  to  inter- 
fere with  navigation.  State  v.  N.  E.  R.  Co.,  9  Rich.  (S.  Car.)  247; 
to  compel  it  to  run  daily  trains,  In  re  New  Brunswick,  etc.,  R.  R., 
I  P.  &  B.  667 ;  to  compel  the  delivery  of  grain  at  a  particular  eleva- 
tor, Chicago,  etc.,  R.  Co.  v.  People,  56  111.  365 ;  to  compel  the  com- 
pletion of  its  road.  Farmers'  Loan  &  Trust  Co.  v.  Henning,  17  Am. 
Law  Reg.  (N.  S.)  266;  to  compel  the  grading  of  its  track  so  as  to 
make  crossings  convenient  and  useful,  People  ex  rel.  Green  v.  D.  & 
C.  R.  Co.,  58  N.  Y.  152;  New  York  Central,  etc.,  R.  Co.  v.  People, 
12  Hun.  (N.  Y.)  195,  s.  c.  74  N.  Y.  302;  Lidianapolis  R.  Co.  v. 
State,  ^y  Ind.  489 ;  to  compel  the  reestablishment  of  an  abandoned 
station.  State  v.  Railroad  Co.,  37  Conn.  154:  to  compel  the  replace- 
ment of  a  track  taken  up  in  violation  of  its  charter.  Rex  v.  Severn, 
etc.,  R.  Co.,  2  Barn.  &  Aid.  (K.  B.)  646;  to  prevent  the  abandon- 
ment of  a  road  once  completed,  Talcott  v.  Pine  Grove,  supra,  i  Flip- 
pin  (U.  S.  Cir.)  145 ;  and  to  compel  a  company  to  exercise  its  fran- 
chise. People  v.  A.  &  V.  R.  Co..  24  N.  Y.  261.  These  are  all  express 
or  implied  obligations  arising  from  the  charters  of  the  railroad  com- 
l-anies,  but  not  more  so  than  the  duty  to  carry  freight  and  passen- 
gers. That  duty  is,  indeed,  the  ultima  ratio  of  their  existence ;  the 
great  and  sole  public  good  for  the  attainment  and  accomplishment 
of  which  all  the  other  powers  are  given  or  imposed.  It  is  strangely 
illogical  to  assert  that  the  state,  through  the  courts,  may  compel  the 
performance  of  every  step  necessary  to  bring  a  corporation  into  a 
cf)nditif)n  of  readiness  to  do  the  very  thing  for  which  it  is  created, 
1>ut  is  then  powerless  to  compel  the  doing  of  the  thing  itself. 

We  cannot  bring  our  minds  to  enlertain  a  doubt  that  a  railroad 
corporation  is  comi)ellable  by  mandamus  to  exercise  its  duties  as  a 
carrier  of  freight  and  passengers;  and  that  the  power  so  to  compel 
it  rests  equally  firmly  on  the  gronnd  th.it  tliat  duty  is  a  public  trust, 
whirli,  having  been  conferred  by  the  state  and  accepted  by  the  cor- 
j)orafion.  may  be  enforci-d  for  the  ]-)ublic  benefit;  and  also  upon  the 
contract  between  the  cor])oratioii  and  tin-  stale,  ex])ressed  in  its  char- 


§    5  MANDAMUS  TO   PRIVATE  CORI'ORATIONS.  193 

ter  or  implied  in  the  acceptance  of  the  franchise,  Abbott  v.  Johns- 
town R.  Co.,  80  N.  Y.  31  ;  and  also  upon  the  ground  that  the  com- 
mon right  of  all  the  people  to  travel  and  carry  upon  every  public 
highway  of  the  state  has  been  changed  in  the  special  instance,  by 
the  legislature  for  adequate  reasons,  into  a  corporate  franchise,  to 
be  exercised  solely  by  a  corporate  body  for  the  public  benefit,  to  the 
exclusion  of  all  other  persons,  whereby  it  has  become  the  duty  of 
the  state  to  see  to  it  that  the  franchise  so  put  in  trust  may  be  faith- 
fully administered  by  the  trustee. 

But  it  is  said  that  the  state  is  not  injured  and  has  no  interest  in 
the  question  whether  the  corporation  perform  the  duty  or  not.  The 
state  may  suiter  no  direct  pecuniary  injury,  as  it  may  not  by  the 
neglect  of  one  or  more  of  its  numerous  political  officers  who  hold  in 
trust  for  the  people  the  official  duties  reposed  in  their  hands ;  but 
that  is  no  test  of  the  power  or  duty  of  the  state  in  either  case.  The 
sovereignty  of  the  state  is  injured  zvhcncvcr  any  public  function 
vested  by  it  in  any  person,  natural  or  artificial,  for  the  common  good 
is  not  used  or  is  misused,  or  is  abused;  and  it  is  not  bound  to  inquire 
zvhether  some  one  or  more  of  its  citizens  has  not  thereby  received  a 
special  injury  for  which  he  may  recover  damages  in  his  private  suit. 
Such  an  injury  wounds  the  sovereignty  of  the  state  and  thereby,  in 
a  legal  sense,  injures  the  entire  body  politic.  The  state,  in  such  a 
case  as  this,  has  no  other  adequate  remedy.  It  may  proceed,  it  is 
true,  to  annul  the  corporation,  as  has  been  held  in  many  cases  where 
corporations  had  neglected  public  duties.  People  v.  Fishkill,  etc., 
R.  Co.,  27  Barb.  (N.  Y.)  452,  458;  People  v.  Turnpike  Co.,  23 
Wend.  (N.  Y.)  254;  Turnpike  Co.  v.  State,  3  Wall.  (U.  S.)  210; 
People  v.  Turnpike  Co.,  2;^  Wend.  (N.  Y.)  208;  People  v.  Turnpike 
Co..  23  Wend.  (N.  Y.)  222;  Charles  River  Bridge  Co.  v.  Warren 
Bridge,  7  Pick.  (Mass.)  344.  But  that  remedy  is  not  adequate,  for 
it  only  destroys  functions  where  the  public  interests  require  their 
continued  existence  and  enforcement.  It  has,  therefore,  an  election 
which  of  these  remedies  to  pursue.  State  v.  Hartford,  etc.,  R.  Co., 
29  Conn.  538 ;  People  v.  A.  &  V.  R.  Co.,  24  N.  Y.  261  ;  Talcott  v. 
Pine  Grove,  supra. 

Nor  do  Ave  think  the  fact  that  injured  individuals  may  have  pri- 
vate remedies  for  their  damages  they  have  sustained  by  neglect  of 
duties  precludes  the  state  from  its  remedy  by  mandamus.  Where  the 
injury  is  to  a  single  person  under  circumstances  which  do  not  affect 
the  general  public  the  courts,  in  the  exercise  of  their  discretion,  have 
{•roperly  refused  this  remedy,  on  his  relation.  The  injured  party  is 
then  the  suitor ;  he  has  an  adequate  remedy  by  a  private  action  for 
damages.  That  was  the  case  of  the  People  v.  Erie  R.  Co..  22  Hun. 
f  N.  Y.)  533,  relied  upon  by  the  court  below,  in  which  the  court  held 
that  the  relator's  remedy  was  by  suit  for  damages  and  not  by  man- 
damus.   That  case  is  not  authority  for  denying  the  writ  to  the  attor- 


194  PEOPLE  V.   NEW  YORK  CENTRAL,  ETC.   R.   CO.  §    5 

ney  general  for  a  neglect  or  a  refusal  by  corporations  to  exercise 
their  franchises  to  an  extent  which  aftects  a  great  number  of  citi- 
zens, and  continues  for  a  considerable  period  of  time;  nor  does  it 
deny  the  right  of  the  people  acting  on  their  own  behalf  and  in  their 
own  suit  to  pursue  this  remedy  in  any  case  of  neglect  or  refusal  to 
exercise  a  public  function  which  the  interest  of  the  people  requires 
should  be  kept  in  vigorous  and  efficient  use. 

The  court,  in  that  case,  recognizes  the  distinction  when  it  says 
''an  exception  exists,  where  a  corporation  suspends  the  exercise  of 
its  franchises."  The  suspension  of  the  exercise  of  corporate  functions 
is  the  gravamen  of  the  complaint  in  this  case,  and  the  case  cited  is 
no  authority  for  denying  the  writ  when  the  people  come  into  court 
with  their  own  suit  by  their  attorney  general  to  move  for  a  writ  of 
mandamus  on  allegations  of  an  alleged  long-continued  and  very  gen- 
eral suspension  of  a  corporate  duty. 

Having  determined  the  question  of  the  right  of  the  state  to  prose- 
cute the  writ  of  mandamus  on  the  ground  of  the  refusal  or  the  neg- 
lect of  a  corporation  to  exercise  its  duty  of  carrier,  it  remains  to  be 
seen  whether  a  case  which  would  justify  the  granting  of  the  writ  was 
presented.  The  case  stands  altogether  on  the  facts  presented  by  the 
appellants.  The  course  taken  by  the  respondents  must  be  taken  as 
an  admission  of  the  material  facts  contained  in  the  petition  and  the 
affidavits. 

The  excuse  appears  only  in  the  statement  of  the  reasons  assigned 
by  the  respondents  for  their  refusal  to  accept,  transport,  and  deliver 
the  freight  and  the  property.  In  the  petition  it  is  stated  in  these 
words,  "that  the  persons  in  their  employ  handling  such  freight  re- 
fuse to  perform  their  work  unless  some  small  advance,  said  to  be 
three  cents  per  hour,  is  paid  them  by  the  said  railroad  corporation." 
The  affidavits  show,  it  may  in  short  be  said,  that  the  skilled  freight 
handlers  of  the  respondents,  who  had  been  working  at  the  rate  of 
seventeen  cents  per  hour  (or  one  dollar  and  seventy  cents  for  ten 
hours),  refused  to  work  unless  twenty  cents  per  hour,  or  two  dollars 
per  day  of  ten  hours,  were  paid,  and  that  their  abandonment  of  their 
work,  and  the  inefficiency  of  the  unskilled  men  afterwards  employed, 
caused  the  neglect  and  the  refusal  complained  of. 

These  facts  reduce  the  question  to  this :  Can  railroad  corporations 
refuse  or  neglect  to  perform  their  public  duties  upon  a  controversy 
with  their  cmijloves  over  the  cost  or  the  expense  of  doing  them? 
\Vc  think  this  (juestion  admits  of  but  one  answer.  The  excuse  has 
in  the  law  no  validity.  The  duties  imposed  must  be  diseJiarged  at 
■n'luitcTrr  cost.  They  cannot  he  laid  doivn  or  abandoned  or  sus- 
pended without  the  lei^ally  expressed  consent  of  the  state.  The 
trusts  are  active,  potential  and  imperative,  and  must  be  executed 
until  lawfully  surrendered,  otherwise  a  ])iil)Iic  highway  of  great  util- 
ity is  closed  or  obstructed  without  any  process  recognized  by  law. 


§    5  MANDAMUS  TO   PRIVATE  (.OR  i'Ol^Al  1U.\  S.  I95 

This  is  something  no  public  officer  charged  with  the  same  trusts  and 
duties  in  regard  to  other  pubhc  highways  can  do  without  subjecting 
himself  to  mandamus  or  indictment. 
Reversed. 


RICH^IOND  RAILWAY  &  ELECTRIC  CO.  v.  BROWN. 

1899.     Supreme  Court  of  Appeals  of  Virginia. 
97  Va.  26,  32  S.  E.  775. 

(JError  tgLJiidgment  of  the  circuit  court  awarding^  a  mandamus, 
upon  the  complaint  of  _BlQ\vn_,stating^that  he  was  not  accordecl  the 
l"lghts^  of  a  passenger  in  being. t ran sf erred  fron-j  onej[)art  of  the~  rail- 
way to  another  without  paying  an  extra  fare,  as  required  by  the  pro- 
visions of  the  agreement  with  the  county  court,  under  legislative  au- 
■"thority,  permitting  an  extension  of  the  line,  and  its  operation,  in  the 
territory  where  the  controversy  arose.  A  demurrer  to  the  petition 
was  filed,  which  w.as  overruled,  and  this  was  assigned  for  error.) 

Harrison,  J.  The  first  groimd.of  demurrer  is  that  the  petition 
should  no^t  have  been  brought  in  the  name  of_.a  j)riYat:e  individual, 
"but  iiTthe^name  of  some  officer  authorized  to  represent  the  common- 
wealth.^  Tlie  practice  conloiuled  for  docs  not  obtain  in  Virginia,  and 
^s  not  sustained  by  the  weight  of  authority  elsewhere.  Tliat  private 
persons  may  move  for  mandamus  to  enforce  a  public  dut\-,  not  due 
to  the  <;o\  t,'nuiicnt  as  sucli,  ^^•it1^oTlt  tlie  intervention  of  a  la^v  officer 
of  the  go\'crnmcnt.  is  settled  h\  the  highest  authority.  Railroad  Co. 
>.  HalC9i  U.  S.  355.  ■  ^ 

The  court  is  further  of  the  opinion  that  the  motion  to  quash  the 
petition  was  properly  overruled.  The  first  ground  assigned  in  sup- 
port of  this  motion  was  that  the  remedy  was  complete  and  adequate 
at  law  by  a  suit  for  damages.  In  order  that  the  existence  of  another 
remedy  shall  constitute  a  bar  to  relief  by  mandamus,  such  other 
remedy  must  not  only  be  "adequate",  in  the  general  sense  of  the 
term,  but  it  must  be  specific  and  appropriate  to  the  circumstances  of 
the  particular  case.  The  remedy  at  lazv  zvhich  zvill  operate  as  a  bar 
to  mandaniits  must  generally  be  such  a  remedy  as  zvill  enforce  a 
right  or  the  performance  of  a  duty.  A  remedy  cannot  be  said  to  be 
fidly  adequate  to  meet  the  justice  and  the  necessities  of  a  case,  unless 
it  reaches  the  end  intended,  and  actually  compels  a  performance  of 
the  duty  in  question.  Such  other  remedy,  in  order  to  constitute  a 
bar  to  mandamus,  must  be  adequate  to  place  the  injured  party,  as 
nearly  as  the  circumstances  of  the  case  will  permit,  in  the  position 
which  he  occupied  before  the  injury,  or  the  omission  of  the  duty 
complained  of.     The  controlling  question  is  not,  "Has  the  partv  a 


196  LANYON    V.     JOPLIN     WATER    WORKS.  §    5 

lemedy  at  law?"  but,  "Is  that  remedy  fully  commensurate  with  the 
necessities  and  rights  of  the  party,  under  all  the  circumstances  of 
the  particular  case  ?"  Or,  as  was  said  in  one  case :  "To  supersede 
the  remedy  by  mandamus,  the  party  must  not  only  have  a  specific 
remedy,  but  one  competent  to  afford  relief  upon  the  very  subject- 
matter  of  the  application,  and  one  which  is  equally  convenient,  as 
beneficial  or  as  effective,  as  the  proceeding  by  mandamus."  2  Spell- 
ing Extr.  Relief,  §  1375. 

Iil_the  case  at  bar  the  mandamus  was  sought  to  compel  the  plain- 
tiff in  error  to  transfer  the  defendant  in  error  from  one  to  another 
of  its  street  cars  without  additional  charge.  If  the  defendant  in 
error  was  entitled,  as  alleged,  to  the  transfer,  it  is  manifest  that  a 
suit  at  law  for  the  damages  for  a  failure  to  perform  that  duty  was 
not  an  adequate  remedy,  and  would  not  actually  compel  the  per- 
formance of  the  duty  in  question.  The  wrong  suffered  was  a  con- 
stantly recurring  and  continual  one,  and,  whatever  may  have  been 
the  result  of  the  repeated  suits  for  damages,  the  remedy  was  not  as 
convenient,  as  beneficial  or  as  effective,  as  the  proceeding  by  man- 
damus. 

(.•\fter  holding  that  the  terms  and  conditions  prescribed  by  some 
other  designated  authority,  when  so  fixed  and  prescribed  become  a 
part  of  the  organic  law  of  the  corporation,  and  can  be  enforced  by 
mandamus,  the  decision  below  was  affirmed.) 

See  also,  Richardson  v.  Smith,  7  Houst.  (Del.)  137;  Notes  89  Am.  Dec. 
728;  98  Am.  Dec.  375;  51  Am.  Rep.  78;  3  Am.  St.  Rep.  807;  7  Am.  St. 
Rep.  484;  n  Am.  St.  Rep.  317;  59  Am.  St.  Rep.  198;  People  v.  Suburban 
R.  R.  Co.,  178  111.  594;  Union  Pac,  etc.,  R.  Co.  v.  Hall,  91  U.  S.  343; 
State  V.  Republican  Valley  R.  R.  Co.,  17  Neb.  647;  Lamphere  v.  Grand 
Lodge,  47    Mich.   429;    Crane   v.   Chicago,   etc.,   R.    Co.,   74   la.   330. 

But  see  State  v.  Canal  Co.,  23  La.  Ann.  333;  San  Antonio  Street  R.  R. 
Co.  v.   State,  90  Texas,  520. 


STATE  EX  REL.  LANYON  v.  JOPLIN  WATER  WORKS. 

1892.     Court  of  Appeals  of  Missouri.     52  Mo.  App.  312. 

''iiLL,  J.  The^defendant  water  company,  at  the  beginning  of  this 
.«uit,  owned  and  operated  a~system  of  water  works  in  the  city  of 
Jojjlin,  wherein  it  "Had  an  "exclusive  right  under  and  by  virtue  of  an 
ordinance  of  said  cTty.  Section  14  of  this  ordinance  attempts,  as 
far  as  may  be,  to  prescribe  the  rates  or  charges  for  consumers.  It 
rends  as  follows:  "§  14.  The  water  rates  to  consumers  shall  not 
exceed  twenty-five  cents  per  one  thousand  gallons,  or  one  cent  per 
barrel,  aj)prc)ximatcd  for  the  several  purposes,  as  follows".  Then 
a[)pcars  a  schedule  of  prices  per  annum  for  dwellings  (so  much  per 
room),  hotels,  offices,  stores,  bakeries,  saloons,  butcher  shops,  soda 


§    5  MANDAMUS  TO  PRIVATE  CORPORATIONS.  I97 

fountains,  water  closets,  etc.,  concluding  with  this  clause :  "Rents 
for  all  ])urposes  not  hereinbefore  enumerated  will  be  fixed  by  esti- 
mate or  meter  measurement  at  a  rate  pro  rata  to  quantity  used,  not 
exceeding  in  any  instance  twenty  five  cents  per  one  thousand  gal- 
lons, or  one  cent  per  barrel ;  provided,  however,  that  the  party  re- 
quiring the  meter  must  pay  the  expense  of  the  same." 

Plaintiff  Lanyon  ffP''^^'^  ^j  Joph^i  ^  family  residence,  and  pro- 
\-\AeA\h(-  ^^me'  with  t'^'^  n^^z-^ccory  pip^g  etc.,  to  supply  it  with  water 
"Iromthe  defendant's  mains.  He  also  put  in  at  his  own  expense  a 
meter  of  the  most  approved  design.  Lanyon  then  applied  to  the 
water  company  to  turn  in  the  w  atcr  thr(nigh  his  meter  and  into  iiis 
,dvvdHiig7accOiTTp"ail3lngTTis  api)lication  with  a  tender  of  tlic  necessary 
prepayment  of  charges.  The  water  company  declined  to  supply  water 
to  be  measured  and  paid  for  according  to  che  meter,  but- did  offer  to 
let  in  water  if  plaintiff  would  pay  according  to  the  schedule  of  ap- 
proximated prices.  Thert.'ii])(>n  Lanyon  brought  this  action  in  man- 
damus to  compel  the  conipan\-  to  turn  on  the  water  and  supply  his 
premises  according  tg  the  meter  rates.  ^  At  the  final  hearing  the  cir- 
ciiir  court  awarded  a  peremptory  writ  as  prayed  by  plaintiff,  and  de- 
fendant a])pcale(l. 

""The  case  must  turn  on  the  proper  construction  of  section  14  (above 
quoted  from)  of  the  ordinance  which  grants  the  defendant  its  exclu- 
sive franchise  to  operate  its  waterworks  in  Joplin.  The  defendant 
takes  the  position  that  it  is  obliged  under  the  terms  of  that  section  to 
supply  water  to  residences  and  all  other  subjects  specifically  named, 
when  and  only  when,  the  consumer  shall  pay,  or  offer  to  pay,  the 
price  affixed  to  each  item,  and  that  the  company  is  not  bound  to  sup- 
ply water  for  any  residence,  or  other  subject  so  specifically  named, 
on  charges  to  be  paid  as  per  meter  measurement  at  twenty  five  cents 
per  one  thousand  gallons ;  while  the  plaintiff  asserts  the  right  to  an 
option  of  taking  water  at  the  fixed  rate  named  in  the  schedule  or  by 
placing  a  meter  at  his  own  expense,  to  have  water  supplied  at  the 
rate  of  twenty  five  cents  per  one  thousand  gallons,  actual  measure- 
ment. 

"In  our  opinion  the  plaintiff's  position  is  the  correct  one.  The 
manifest  intention  of  the  ofdinance,  it  seems  to  us,  was_  to .  fix  llie 
maximum  charge  for  water  at  twenty  five  cents  per  one  thousand 
"gallons.  If  the  consumer  thinks  i)roper  he  may  decline  to  go  to  ihg 
*"?!!cpense  of  a  meter,  and  accc[)t  flic  water  to  be  furnished-at.the^/.la^- 
proximated"  6r  estifnafecT  schedule  price.  If,  however,  the  water 
company's  patrOn'^cIeems~'in5esTr'or"  to^liis  interest,  he  is  left  the 
choice  of  placing  a  meter  at  his  own  expense,  and  then  the  charge 
against  him  is  no  longer  a  guess  or  an  estimate,  but  he  will  pay  for 
the  water  actually  used — no  more,  no  less. 

The  relator  Lanyon  saw  proper  to  adopt  the  latter  course,  and  to 
have  the  water  consumed  on  his  premises  measured.     He  consulted 


igS  LANVO.X     V.     JOPLIN    WATER    WORKS.  §    5 

with  the  officers  of  the  defendant  company  as  to  the  best  character 
of  meter,  and  placed  it  properly  to  receive  the  water  that  might  be 
used.  He  was  then,  on  payment  or  tender  of  the  necessary  charges, 
clearly  entitled  as  a  citizen  of  Joplin  to  have  the  water  turned  into 
his  residence. 

iVVe  hold  too — against  the  contention  of  the  defendant— mandamus__ 
to  be  the  proper  remedy  in  a  case  like  this.  TKe  'wate'f  company  in 
the  enjoyment  of  its  franchise  to  lay  pipes  in  the  streets  of  Joplin  has 
a  monopolv  to  supply  water  to  the  inhabitants.  It  is  there,  to  a  cer- 
tain extent,  exercising  the  right  of  eminent  domain.  Its  duties  are 
of  a  public  nature.  It  is  bound  by  the  terms  of  its  grant  to  supply 
water  from  its  mains  to  all  citizens  who  may  put  themselves  in  a  con- 
dition to  demand  and  receive  it.  Should  it  fail  or  refuse  to  do  so 
without  just  cause,  then  mandamus  will  lie  to  compel  the  performance 
of  this  duty.  2  Beach  Private  Corp.,  §§  834-6;  2  Morawetz  Private 
Corp.,  §  1132 ;  Chicago,  etc.,  R.  Co.  v.  Hempstead,  56  111.  365 ;  Web- 
ster Telephone  Case,  17  Neb.  126- 136-7.  We  have  here  the  presence 
of  a  specific  legal  right  and  the  absence  of  an  effectual  legal  rem- 
edy, which  clearly  warrants  a  resort  to  mandamus. 

We  observe  the  point  made  by  the  defendant's  counsel  that  the 
peremptory  writ  does  not  follow  and  conform  to  the  alternative  writ 
of  mandamus.  The  learned  counsel  contends  for  the  correct  doc- 
trine in  the  abstract,  as  announced  in  this  state,  State  ex  rcl.  Millett 
V.  Field,  37  Mo.  App.  83-100;  and  that  is,  that  the  peremptory  writ 
can  go  no  further  nor  vary  in  any  substantial  particular  from  the 
commands  of  the  alternative  writ.  But  we  fail  to  discover  here  any 
material  departure.  The  relator  had  become  entitled,  by  reason  of 
his  providing  a  meter  and  the  prepayment  or  tender  of  the  neees- 
sary  charges,  to  have  the  water  turned  into  his  premises.  The  al- 
ternative and  peremptory  writ  substantially  commanded  this  and 
nothing  more. 

The  judgment  is  for  the  right  party,  and  will  be  affirmed.  All 
concur. 

To  compel  cemetery  to  permit  huriril ;  Mt.  Moriah  Cemetery  Ass'n  v. 
Commoinvcaltli,   8r    Pa.    St.    235. 

To  compel  pas  companies  to  furnish  t?as ;  People  v.  Manhattart  Gas 
LiRht  Co.,  45  liarb.  (N.  Y.)  136;  Mackin  v.  Portland  Gas  Co.,  38  Oregon, 
120. 

To  compel  irriRating  company  to  furnish  water;  Price  v.  Irrigating  Co., 
56  Cal.  431  ;   Combs  v.  Ditch  Co.,  17  Colo.   14O. 

To  compel  telephone  companies  to  furnish  service;  Missouri  v.  Bell  Tel. 
Cn..  21  F.  530:  Central  Union  Tel.  Co.  v.  State,  118  Ind.  194;  State  v. 
NH).  tcl.  Co.,  17  Neb.  126;  Ccn.  Dist.  Tel.  Co.  v.  Commonwealth,  114  Pa. 
St.  59-2.     Contra— In  re  Baldwinsville  Tel.  Co.,  24  Misc.   (N.  Y.)   221. 

To  comjx-l  railroads  to  increase  number  of  trains  (Ohio,  etc.,  R.  Co.  v. 
People,  120  Til.  200);  to  establish  stations  (People  v.  N.  Y.,  etc.,  R.  Co., 
104  N.  v.  58);  to  construct  crossings  (Roggs  v.  Chicago,  etc.,  R.  J-"-  54 
Iowa.  41s);  to  stop  trains  at  station  (People  v.  Louisville,  etc.,  R.  Co., 
220  111    48). 


^    5  TvlANDAMUS  TO  PRIVATE  COKi'URATIONS.  I99 

PEOPLE  Kx  KEL.  JACKSON  v.  SUBURBAN  R.  CO. 
1899.     Supreme  Court  of  Illinois.     178  111.  594,  53  N.  E.  349. 

(Appellee  company  was  chartered  under  the  laws  of  Illinois  for 
the  purpose  of  owning,  operating  and  maintaining  electric  lines  of 
street  cars.  An  ordinance  of  the  village  of  River  Forest  authorized 
appellee  company  to  enter  and  make  use  of  the  streets,  alleys  and 
highways  of  said  village  for  the  operation  of  a  street  suburban  rail- 
road to  Chicago,  provided  (among  a  number  of  other  conditions 
imposed  by  said  ordinance  on  the  railroad  company)  that  the  fare 
betw-een  any  point  in  the  village  of  River  Forest  and  the  city  of 
Chicago  should  not  exceed  the  fare  charged  from  any  point  in  the 
town  of  Cicero  to  Chicago  or  return,  either  for  a  single  trip,  or  at 
commutation  rates,  or  otherwise.  The  ordinance  further  provided 
that  upon  a  failure  to  comply  with  the  terms  and  conditions  thereof, 
said  ordinance  should  become  absolutely  null  and  void.  Petition, 
among  other  things,  charged  that  appellee  company  offered  for  sale 
and  sold,  passenger  tickets  of  twelve  rides  for  $1,"  good  for  one  con- 
tinuous ride  over  its  line  in  the  town  of  Cicero  only  to  points  in 
Chicago"  and  refused  and  neglected  to  sell  twelve  tickets  for  $1 
good  from  points  in  River  Forest  to  Chicago  but  charged  a  cash  fare 
of  ten  cents  for  each  and  every  ride  from  River  Forest  to  Chicago, 
and  refused  and  neglected  to  accept  said  tickets  sold  at  the  rate  of 
twelve  for  $1  for  rides  entering  into  or  from  River  Forest.  Petition 
prays  for  a  writ  of  mandamus,  directed  to  the  company,  its  officers 
and  agents  commanding  them  that  so  long  as  tickets  are  sold  at  the 
rate  of  twelve  for  $1  good  for  rides  from  and  to  the  towns  of  Cicero 
and  Chicago,  said  company  shall  also  sell  tickets  at  the  same  rate 
good  from  and  to  River  Forest  and  Chicago.) 

Bqggs,  J.  (after  stating  the  facts). 

It  is  urged  that  the  writ  is  here  sought  to  be  availed  of  for  the 
purpose  of  securing  the  fulfillment  of  the  terms  and  conditions  of  a 
private  contract,  and  that  it  is  fundamental  law  that  mere  contract 
obligations  cannot  be  enforced  by  mandamus.  The  appellee  is  a 
qitasi-puhVic  corporation.  The  sovereign  powxr,  wdien  granting  a 
public  franchise  to  corporations  of  that  character,  may  declare  that 
certain  acts,  in  the  nature  of  duties  to  the  public,  shall  be  performed 
by  the  corporation  to  or  upon  whom  the  franchise  is  conferred,  and 
may  provide  that  the  investiture  of  the  franchise  shall  be  conditional 
upon  the  acceptance  of  the  burden  of  performing  such  acts  or  ser- 
vice. It  is  now  well  settled  that,  when  there  is  the  grant  and  the  ac- 
ceptance of  a  public  franchise  involving  the  performance  of  such 
acts  or  service,  the  corporation  accepting  the  franchise,  may  be  com- 
pelled by  the  writ  of  mandamus  to  perform  the  duty  so  enjoined  by 
the   grant,   and   consented   to  by  the  acceptance   thereof.      Merrill 


200  JACKSON    V.    SUBURBAN    R.    CO.  §    5 

Aland.  §§  2-j,  157,  159;  Haugen  v.  Water  Co.,  21  Oreg.  411,  28  Pac. 
244 ;  Indianapolis,  etc.,  R.  Co.  v.  State,  ^y  Ind.  489 ;  City  of  Potwin 
Place  V.  Topeka  R.  Co.,  51  Kan.  609,  33  Pac.  309;  San  Antonia  St. 
R.  Co.  V.  State,  38  S.  W.  55,  (Texas  Civ.  App.) 

But  it  is  insisted  that  the  authority  granted  the  respondent  com- 
pany by  the  ordinance  under  consideration  is  not  a  franchise,  but  a 
mere  license,  and  which,  having  been  acted  upon,  has  become  irrevo- 
cable:  and  the  City  of  Belleville  v.  Citizens  R.  Co.,  152  111.  171. 
^8  N.  E.  584,  is  cited  as  in  support  of  the  contention.  The  general 
assembly  representing  the  people  at  large,  possesses  full  and  para- 
mount po\yer  over  all  highways,  streets,  alleys  and  like  public 
places  in  the  state.  Ilad  the  charter  which  gives  life  to  the  respond- 
ent company  been  granted  upon  the  conditions  expressed  in  the  ordi- 
nance under  consideration,  and  had  the  company  accepted  the  char- 
ter as  it  did  the  ordinance,  and  acted  under  it  in  like  manner  as  it 
did  under  the  ordinance,  the  enforcement  of  the  service  and  duties 
imposed  by  the  charter  might,  it  is  clear,  have  been  accomplished  by 
the  aid  of  the  writ  of  mandamus,  though  the  right  obtained  by  the 
charter  to  enter  upon  the  streets  of  the  village  be  in  such  a  case  but 
a  license.  The  state  does  not,  however,  exercise  that  full,  paramount 
power  which  it  possesses  over  streets,  alleys,  etc. ;  but  in  the  distribu- 
tion of  governmental  powers  the  general  assembly  adopted  the  pol- 
icy of  selecting  the  cities  and  villages  of  the  state  as  governmental 
agencies,  and  delegating  to  such  municipalities  the  power  to  regu- 
late and  control  the  use  of  the  streets,  alleys,  etc.,  within  their  re- 
spective limits.  Such  power  thus  delegated  is  exercised  by  the 
municipal  authorities  acting  in  behalf  of  the  state  for  the  benefit  of 
the  public.  While  it  is  true  that  the  charter  of  a  street  railway  cor- 
poration is  granted  under  the  general  laws  of  the  state,  yet  a  charter 
so  obtained  gives  but  the  bare  power  to  exist.  In  order  to  enable 
such  a  cori)oration  to  carry  out  the  sole  purpose  for  which  it  has  ex- 
istence, it  nuist  have  a  further  exercise  of  sovereign  power  in  its 
behalf.  Some  city  or  village,  clothed  by  delegation,  with  authority 
to  exercise  sovereign  power  possessed  by  the  state,  must  grant  such 
corporation  authority  to  enter  upon  its  streets  and  alleys  and  con- 
struct and  operate  its  road  thereon.  The  power  possessed  by  the 
slate  to  attach  as  conditions  to  such  a  grant  the  performance  of 
fitities  owing  by  a  qnas\-\i\\\)\\z  cori)oration  to  the  public,  and  di- 
rectly beneficialto  the  iniblic,  may  be  exercised  by  a  municipality  in 
the  exercise  of  the  povyer  by  it  possessed  by  delegation  from  the 
state  to  permit  the  use  of  its  streets.  aIU'\  s  and  ])ul)lic  jilaccs  by  the 
corjioration.  It  is  clearly  shown  by  the  pelition  and  ordinance  that 
the  appellant  company  is  operating  a  street  r.iilw.iy.  It  is  invested 
with  corporate  life  and  was  granted  corjiorale  i)Ower  to  enable  it  to 
.vrvc  the  public  as  a  public  carrier  of  passengers.  Us  property  is 
iw pressed  '.i'Uh  a  public  use,  niui  ll   iinisl  r.vert  its   hinders  for  the 


§    5  MANDAMUS  TO  I'RIVATE  CORPORATIONS.  201 

benefit  of  the  public.  It  is  not  a  private,  but  a  quasi- piiblie,  corpora- 
tion, and  it  ozves  it  as  a  duty  to  the  public  to  demand  reasonable  rates 
only  for  the  transportation  of  passengers,  and  to  serve  its  patrons 
zvithout  unjust  discrimination,  and  this  duty  may  be  enforced  by  the 
state,  acting  directly  or  through  a  governmental  agency.  Water  Co. 
V.  Fergus,  178  111.  571,  53  N.  E.  363.  The  ordinance,  the  acceptance 
thereof,  and  the  enjoyment  of  the  benefits  of  its  provisions,  by  the 
respondent  company  must  be  regarded  as  establishing,  so  far  as  the 
respondent  company  is  concerned,  and  as  estopping  it  to  deny,  that 
the  exaction  of  a  greater  sum  for  the  transportation  of  passengers, 
from  its  stopping  place  in  the  village  of  River  Forest  to  the  city  of 
Chicago,  than  is  demanded  for  the  like  service  from  stopping  places 
on  its  line  within  the  specified  portion  of  the  town  of  Cicero  is  an  un- 
reasonable exaction,  and  unjust  discrimination  against  those  of  the 
public  who  may  desire  to  reach  the  city  of  Chicago  from  the  village 
of  River  Forest  by  way  of  the  cars  of  the  respondent  company.  That 
being  established,  compliance  wnth  the  provisions  of  the  ordinance 
m  the  respect  named  becomes  a  duty  owing  to  the  public,  the  per- 
formance whereof  is  within  the  right  and  power  of  the  village,  act- 
ing as  the  agency  of  the  state,  to  secure  by  means  of  the  conditions 
incorporated  in  the  ordinance.  The  fact  that  the  ordinance  required 
that  the  company  should  formally  accept  it  as  conditioned  had  no  ef- 
fect to  render  the  grant  a  mere  private  contract.  The  state,  through 
the  village  as  its  representative,  was  acting,  and  the  power  which 
v.as  exercised  by  the  village  was  that  of  the  sovereign.  That  which 
the  ordinance  required  that  the  company  should  do  and  should  con- 
sent to  do  did  not  become  mere  contract  obligations  on  the  part  of 
the  company  to  perform  acts  beneficial  to  the  village.  The  village, 
as  a  corporate  entity,  had  no  interest  whatever  in  the  acts  to  be  per- 
formed. Compliance  with  the  ordinance  in  the  respect  under  con- 
sideration was  not  beneficial  to  the  village  m  its  corporate  capacity, 
but  was  a  duty  to  the  public,  to  be  performed  by  the  company  for 
the  benefit  of  the  public.  There  is  nothing  in  the  nature  of  that  duty 
rendering  it  impracticable  to  enforce  the  performance  of  it  by  the 
writ  of  mandamus,  and,  in  our  view,  the  writ  may  be  invoked  to  se- 
cure observation  by  the  respondent  company. 

Respondent,  treating  the  duties  imposed  upon  it  as  mere  contract 
obligations,  argues  that  the  undertakings  are  wholly  wdthout  con- 
sideration. In  the  absence  of  the  ordinance,  the  respondent  company 
had  no  power  or  right  to  enter  upon  the  streets  of  the  /illage,  and 
erect  poles,  string  wires  thereon,  and  construct  and  operate  its  road 
by  electricity  upon  and  along  the  streets.  These  privileges  consti- 
tute ample  consideration,  if  any  could  be  deemed  necessarv.  The 
privileges  granted  the  respondent  company  by  the  terms  of  the  ordi- 
nance have  been,  and  are  being,  fully  enjoyed  by  it.  It  cannot  be 
permit<"ed  to  take  and  retain  all  advantages  and  benefits  of  the  ordi- 


202  ,    JACKSON    V.    SUBURBAX    K.    CO.  §    5 

nance,  and  escape  performance  of  duties  to  the  public,  upon  which 
its  rights  to  such  advantages  and  privileges  are  predicated,  upon  the 
ground  that  the  ordinance  and  the  duties  imposed  by  it  are  ultra  vires 
both  the  village  and  the  respondent  company.  The  plea  of  ultra 
vires  will  not,  as  a  general  rule,  prevail  when  it  will  not  advance  jus- 
tice, but  will,  on  the  contrary,  accomplish  a  legal  wrong ;  and  it  is  a 
general  rule  that  undertakings,  though  they  be  ultra  vires,  will  be 
enforced  against  (7//a.y/-public  corporations,  if  said  corporations  re- 
tain and  enjoy  the  benefit  of  concessions  granted  on  conditions  that 
such  benefits  should  be  performed.  Brewing  Co.  v.  Flannery.  137 
111.  309,  2y  N.  E.  286;  Kadisch  v.  Association,  151  111.  531,  38  N.  E. 
236;  Eckman  v.  Chicago,  etc.,  R.  Co.,  169  111.  312,  48  N.  E.  496. 

W'hether  mandamus  will  lie  to  compel  the  respondent  company  to 
transport  passengers  beyond  its  own  line  does  not  arise.  It  appears 
from  the  petition  that  the  respondent  company  has  perfected  run- 
ning arrangements  with  other  lines  of  railroad,  and  is  engaged  in 
transporting  its  passengers,  by  means  of  its  own  cars,  and  the  cars 
of  connecting  lines,  to  and  around  the  loop  in  the  city  of  Chicago, 
and  that  it  offers  such  service  at  all  points  in  the  village  of  River 
Forest ;  and  the  complaint  is  that  it  exacts  a  greater  rate  of  fare  for 
twelve  continuous  rides  from  points  in  the  village  of  River  Forest  to 
and  around  the  loop  in  the  city  of  Chicago  than  is  charged  for  a  like 
number  of  rides  from  the  designated  points  in  the  town  of  Cicero, 
contrary  to  its  duty  and  obligation  under  the  ordinance.  The  pur- 
pose of  the  petition  is  not  to  require  the  respondent  to  make  arrange- 
ments with  connecting  carriers  to  carry  passengers  beyond  its  own 
line,  for  such  arrangements  already  exist,  and  the  respondent  com- 
pany is  engaged  in  the  business  of  furnishing  transportation  from 
the  village  of  River  Forest  to  and  from  the  city  of  Chicago ;  but  the 
design  of  the  writ  is  to  prevent  discrimination  in  rates  charged  at 
points  in  the  village  and  in  that  portion  of  the  town  of  Cicero  speci- 
fier! in  the  ordinance. 

There  is  no  force  in  the  point,  vigorously  pressed,  that,  if  man- 
damus will  lie,  it  cannot  be  granted  at  the  application  of  the  relator 
in  this  petition.  The  village,  in  its  corporate  capacity,  has  no  inter- 
est in  the  enforcement  of  duties  owing  by  the  company  to  the  pub- 
lic. As  a  corporate  entity,  the  village  is  not  affected  by  compliance 
or  non-compliance  with  the  rates  of  fare  charged  or  collected  by  the 
respondent  from  the  passengers.  The  writ  relates  to  a  matter  af- 
fecting the  jniblic.  The  people  are  regarded  as  the  real  party,  and 
it  need  not  ap])car  that  the  relator  has  any  legal  interest  in  the  re- 
sult. It  is  enough  that  he  is  a  citizen,  and  is  interested,  as  a  citizen, 
in  having  the  right  enforced.  Ommiissioncrs  v.  People,  ii  111.  202; 
City  of  r)ttawa  v.  IVojile,  48  111.  233;  Hall  v.  People,  57  111.  307. 
The  dcnuirrer  must  be  and  is  overruled. 

The  jiulgnicnt  of  the  court  is  lli.il  a  i)(rciiiptor\'  writ  of  mandanuis 


§    5  MANDAMUS  TO  PRIVATE  CORTORATIONS.  2O3 

issue,  commanding  the  respondent,  said  Suburban  Railroad  Com- 
pany, that  at  all  times  when  it  shall  sell  or  cause  to  be  sold  said 
tickets  of  twelve  rides  for  $i,  good  for  one  continuous  ride  from  any 
stopping  point  in  the  town  of  Cicero  west  of  the  east  line  of  Central 
Avenue,  in  said  town,  over  the  lines  of  said  suburban  Railroad 
Company  and  the  said  Lake  Street  Elevated  Railway  Company  to 
and  from  any  point  on  the  Union  Loop  in  the  City  of  Chicago, 
said  Suburban  Railroad  Company,  shall  also  sell  or  cause  to  be 
sold,  on  demand,  passenger  tickets  of  twelve  rides  for  $i,  each, 
good  from  any  stopping  point  on  its  said  railroad  line,  in  the  village 
of  River  Forest,  over  the  lines  of  said  Suburban  Railroad  Company 
and  the  said  Lake  Street  Elevated  Railway  Company  to  and  from  any 
point  on  the  said  Union  Loop  in  the  city  of  Chicago,  with  equal 
facilities  for  the  purchase  of  said  tickets,  as  prayed  in  the  petition. 
Writ  awarded. 

In  accord. — Rex  v.  Severn  &  Wye  R.  R.  Co.,  2  Barn.  &  Aid.  646;  Com- 
missioners V.  Portland,  etc..  R.  R.  Co.,  63  Me.  269;  State  v.  Sioux  City 
&   P.   R.   R.  Co..  7  Neb.  357;   City  v.  Topeka  R.   Co.,  51    Kan.  609. 

Contra,  People  v.  Rome,  etc.,  R.  Co.,  103  N.  Y.  95 ;  People  v.  New  York, 
etc.,  R.  Co.,  104  N.  Y.  58 ;  Northern  Pac.  R.  Co.  v.  Washington  Ter.,  142 
U.  S.  492;  San  Antonio  Street  R.  R.  Co.  v.  Texas,  90  Tex.  520. 

To  compel  transportation  companies  to  furnish  facilities  to  passengers 
and  especially  shippers  without  discrimination ;  Commonwealth  v.  Eastern 
R.  R.  Co.,  103  Mass.  254;  Wells-Fargo  &  Co.  v.  Northern  Pac.  R.  R.  Co., 
23  Fed.  469;  State  v.  Freemeont,  etc.,  R.  Co.,  22  Neb.  313;  People  v. 
Louisville,  etc.,  R.  Co.,  120  111.  48;  Covington  Co.  v.  Keith,  139  U.  S.  128; 
Attorney  General  v.  American  Ex.  Co.,  118  Mich.  682;  Richmond  etc., 
R.  Co.  V.  Brown,  97  Va.  26;  State  v.  Texas  &  Pac.  R.  Co.,  52  La.  Ann. 
1850. 

Contra — See  cases  above  contra  and  State  v.  Missouri  Pac.  R.  R.  Co.,  55 
Kan.  708;  Saylor  v.  Pennsylvania  Canal  Co.,  183  Pa.  St.  167. 


2.     To  correct  amotion  from  a  corporation. 

STATE  EX  REL.  WARING  v.  GEORGIA  MEDICAL  SOCIETY. 

1869.     Supreme  Court  of  Georgia.    38  Ga.  608,  95  Am.  Dec.  408. 

(Petition  for  a  mandami:s  to  restore  relator  to  membership  in 
defendant  society.  Relator  alleged  that  he  had  been  unlawfully 
and  unconstitutionally  expelled  from  membership  and  deprived  of 
his  right  and  franchise  as  a  corporator  in  said  society.  The  society 
had  the  usual  authority  to  make  by-laws  not  inconsistent  with  its 
charter  or  the  laws  of  the  L^nited  States  and  of  Georgia  and 
these  by-laws  contained  the  provision  that  "any  member  who  shall  be 
guilty  of  ungentlemanly  conduct  during  any  session  of  the  society, 
or  who  shall  conduct  himself  out  of  the  society,  in  such  a  manner 


204  WARING    V.    GKORGIA    MEDICAL    SOCIETY.  §    5 

as  would  render  him  ineligible  to  membership,  shall  be  expelled 
from  the  society  according  to  the  wnshes  of  two-thirds  of  the 
members  of  the  society  present;  provided  that  in  every  instance 
specific  charges  be  set  forth  and  handed  to  the  individual  at  least 
one  month  before  the  society  takes  action  thereon."  Relator  was 
charged  with  having  become  surety  for  one  \\'hite,  a  person  of 
color,  indicted  for  larceny  and  who  had  been  elected  clerk  of  the 
court  in  opposition  to  the  wishes  of  the  entire  respectable  community  ; 
that  relator  had  also  become  surety  for  other  persons  of  color, 
charged  with  riot ;  also  that  relator  had  made  a  charge  for  a 
dispensary  prescription  which  was  furnished  free  of  charge  by  the 
citv ;  also  that  relator  had  consulted  with  a  physician  not  a  member 
of  the  society,  etc.  Relator  was  given  proper  notice  and  expelled 
by  a  two-thirds  vote. 

The  society's  answer  besides  setting  up  want  of  jurisdiction  in 
the  court,  set  forth  the  above  facts.  Relator  moved  to  quash  the 
answer  as  being  insufficient ;  lower  court  overruled  the  motion, 
and  Waring  appealed.) 

Brown^  C.  J. — It  was  insisted  in  this  case)  that  the  Georgia  Med- 
ical Society  was  in  existence  long  before  it  was  incorporated,  and 
that  its  objects  were  in  no  way  changed  by  its  application  for  and 
its  acceptance  of  its  present  charter  from  the  state.  This  may  be 
very  true  but  its  legal  responsibilities  were  changed  by  the  acceptance 
of  the  charter.  While  it  remained  a  voluntary  society,  the  courts  had 
no  jurisdiction  over  it,  if  it  violated  no  law  of  the  state,  and  its 
members  had  no  property  in  their  membership  which  the  law  could 
protect.  But  its  acceptance  of  the  charter  subjected  it  to  the  super- 
vision of  the  proper  leij;al  authorities  having  jurisdiction  in  such 
rfl.?('5,- 'Dartmouth  College  Case,  4  Wheat.  (U.  S.)  674-5;  Fuller  v. 
I'lainfield  Ac.  School,  6  Conn.  544-5. 

When  the  voluntary  society  accepted  the  charter,  it  became  a 
private,  civil  corporation,  and  the  corporators,  then  in  being,  acquired 
a  jjroperty  in  the  franchise,  and  every  person  who  has  since  become 
a  corporator  has  acquired  a  like  property.  The  property  which  the 
corporator  acquires  is  not  visible,  tangible  property ;  but  is  none 
the  less  property,  because  it  is  invisible,  and  intangible.  It  is  not  a 
corporeal  hereditament,  but  an  incorporeal  one.  Blackstone,  in 
his  Commentaries,  volume  2,  p.  2T,  says:  That  incorporeal  heredita- 
ments arc  divided  into  ten  sorts ;  one  of  these  consists  of  franchises. 
I'.ouvicr.  in  his  Law  Dictionary,  volume  i,  p.  503.  says  the  word 
fraurhisc  has  several  meanings,  one  of  which  he  gives  as  follows: 
"ft  is  a  certain  privilege  conferred  by  grant  from  the  government 
and  vested  in  individuals.  Corporations  or  bodies  politic  arc  the 
most  usual  franchise  known  to  our  law."  The  law  books  are  full 
of  the  doctrine  that  persons  may  have  a  property  in  incorporeal 
hereditaments,  franchises,  etc.     Property,  says  Rouvier,  volume  2, 


§    5  MANDAMUS  TO  PRIVATE  CORPORATIONS.  205 

p.  381,  is  divided  into  corporeal  and  incorporeal.  The  former  com- 
prehends such  property  as  is  perceptible  to  the  senses,  as  lands, 
houses,  goods,  merchandise  and  the  like.  Blackstone  says,  volume  2, 
p,  37,  it  is  likewise  a  franchise  for  a  number  of  persons  to  be  incor- 
porated and  exist  as  a  body  politic,  with  power  to  maintain  perpetual 
succession,  and  to  do  other  corporate  acts,  and  each  individual  mem- 
ber of  such  corporation  is  also  said  to  have  a  franchise  or  freedom. 
We  think  it  is  well  settled  by  these  and  other  authorities,  that  a 
corporator  in  a  private,  civil  corporation,  has  a  property  in  the  fran- 
chise, of  which  he  cannot  be  deprived  without  due  process  of  law. 

It  was  insisted  by  the  learned  counsel  for  the  plaintiff  in  error, 
that  the  ninth  by-law  of  this  corporation  is  unauthorized  by  the 
charter  and  that  the  corporation  is  not  justifiable  in  expelling  a 
member  for  its  violation  ;  that  to  deprive  a  corporator  of  his  property 
in  the  franchise  under  it  is  to  deprive  him  of  his  property  without 
due  process  of  law.  We  think  the  ninth  by-law  a  proper  one  in 
view  of  the  objects  of  the  society,  and  we  hold  that  the  charter 
conferred  upon  the  corporation  the  power  to  ordain  and  establish  it, 
and  that  they  have  the  power  to  expel  a  member  when  a  proper  case 
arises  under  it. 

But  we  hold  that  the  society  has  not  an  uncontrollable  discretion 
in  its  construction  and  enforcement.  They  cannot,  under  pretext  of 
enforcing  this  rule,  take  personal  or  private  revenge,  or  make  it 
the  instrument  of  religious  intolerance,  or  political  proscription. 
When  a  member  feels  that  he  is  aggrieved  or  injured  by  the  illegal 
or  oppressive  acts  of  the  body,  it  is  his  right  to  appeal  to  the  courts 
for  redress  or  protection ;  and  it  is  the  right  and  duty  of  the  court 
to  investigate  such  charges,  when  properly  before  it.  and  to  judge  of 
the  legality  of  the  action  of  the  society  in  expelling  a  member  or 
depriving  him  of  any  other  legal  right. 

The  rule  of  law  on  this  subject  is  thus  stated  by  Judge  Black- 
stone,  volume  I,  p.  381.  "The  king  being  thus  constituted  by  law, 
visitor  of  all  civil  corporations,  the  law  has  also  appointed  the 
place  where  he  shall  exercise  this  jurisdiction,  which  is  the  court 
of  king's  bench,  w^here,  and  where  only,  all  misbehaviors  of  this  kind 
of  corporations  are  inquired  into  and  redressed,  and  all  their  contro- 
versies decided."  In  this  state  the  same  visitorial  power  of  correcting 
the  misbehaviors  of  these  corporations,  and  deciding  their  contro- 
versies, is  vested  in  the  superior  courts  of  the  counties  where  they 
are  located,  w^hich  in  England  belongs  to  the  king's  bench.  See  Slee 
V.  Bloom.  5  Johns.  Ch.   (N.  Y.)  335. 

It  was  contended  with  much  zeal  and  ability,  by  the  able  counsel 
for  the  defendant  in  error,  that  mandamus  is  not  the  proper  remedy, 
even  if  we  admit  the  rights  of  Dr.  Waring  have  been  infringed,  or 
that  he  has  been  deprived  of  them  by  the  illegal  action  of  the  society. 
The  rule,  as  laid  down  by  this  court  in  a  number  of  cases  is,  that 


206  WARING   V.    GEORGIA    MEDICAL    SOCIETY.  §    5- 

any  person  having  a  clear  legal  right,  under  the  laws  of  this  state,  is 
entitled  to  the  writ  of  mandamus,  if  he  has  no  other  remedy  to 
enforce  it.  Mayor  v.  State,  4  Ca.  26;  Napier  v.  Poe,  12  Ga.  170; 
Habersham  v.  Canal  Co.  26  Ga.  665. 

But  it  is  insisted  that  the  code,  §  3143,  has  changed  this  rule, 
and  that  mandamus  does  not  now  lie  as  a  private  remedy  between  in- 
dividuals to  enforce  private  rights.  We  do  not  think  this  section 
of  the  code  was  intended  to  deny  this  writ  to  the  corporator,  who 
is  deprived  of  his  rights  by  the  corporation,  when  he  has  no  other 
adequate  remedy  for  their  enforcement.  A  corporation  having  been 
created,  invested  with  certain  powers,  and  charged  with  certain 
duties  to  be  performed  for  the  benefit  of  the  public,  is  not  a  private 
individual  in  the  sense  of  the  word  as  used  in  said  section  of  the 
code,  and  a  corporator  whose  rights  are  violated  or  withheld  from 
him  by  the  corporation,  who  is  without  other  remedy,  is  entitled 
to  the  writ. 

In  the  Commonwealth  ex  rcL  etc.,  v.  The  Mayor  of  j^ancaster. 
5  Watts  (Penn.)  152,  Gibson,  C.  J.,  says  :  "An  action  to  enforce  the 
right  could  not  be  maintained  against  the  corporation  because  per- 
formance of  a  corporate  function  is  not  a  duty  to  be  demanded 
by  action,  and  unless  recourse  could  be  had  to  the  fvnictionary  in 
the  first  instance,  the  relator  might  have  a  cause  for  redress  without 
a  remedy."     See  Mayor  v.  State,  supra. 

Here  the  discharge  of  a  corporate  duty  is  treated  as  an  office 
or  function,  and  the  corporation  as  a  functionary.  In  this  sense,  no 
doubt,  the  legislature  in  the  adoption  of  the  code,  intended  to  treat 
them. 

The  object  of  this  society,  as  stated  in  their  charter,  was  "for  the 
purpose  of  lessening  the  fatality  induced  by  climate  and  incidental 
causes,  and  improving  the  science  of  medicine."  The  whole  com- 
munity having  an  interest  in  the  success  of  the  laudable  undertaking ; 
and  if  the  functions  conferred  by  the  charter,  for  the  benefit  of  the 
public  are  not  faithfully  performed,  and  one  of  the  corporators, 
who  has  no  other  adequate  redress,  is  injured  by  the  conduct  of  the 
crjrporation  (the  functionary),  the  courts  will  grant  him  relief  by 
mandamus. 

The  record  in  this  case  shows  no  sufficient  cause  to  justify  the 
society  in  exjjcUing  Dr.  Waring  from  his  rights  and  privileges  as  a 
corporator.  He  was  expelled  for  doing  that  which  the  law  of  this 
state  not  only  authorizes  but  encourages.  Plis  offending  consists 
in  the  fact  that  he  became  one  of  the  sureties  on  the  official  bond 
of  one  of  the  colored  citizens  of  his  county,  who  had  been  elected 
clc-rk  of  tlic  superior  court  of  the  county,  by  a  majority  of  the  legal 
votes  cast  at  the  election  for  lli.il  office,  and  in  the  further  fact 
that  he  became  the  surety  on  llu'  bonds  of  certain  other  colored 
citizens  who  were  charged  with  the  on"ense  of  riot,  for  their  appear- 


§    5  MANDAMUS  TO  PRIVATE  COKPCJKATIOXS.  20/ 

ance  at  court  to  ansvvqr  as  the  law  directs.  The  very  fact  that  the 
law  requires  the  clerk  of  the  superior  court  to  give  bond  and  surety 
for  the  faithful  discharge  of  his  duties,  is  sufficient  to  justify  any 
citizen  of  the  county  in  becoming  one  of  his  sureties,  and  to  protect 
him,  in  contemplation  of  law,  from  the  imputation  of  having  forfeited 
his  position  as  a  gentleman  by  so  doing. 

Again,  it  is  not  the  object  of  law  to  punish  citizens  of  this 
state  whether  white  or  black,  by  imprisonment,  for  offences  of 
which  the}'  have  never  been  convicted.  When  they  are  charged  with 
violations  of  the  penal  code,  the  requirement  of  the  law  is,  that 
they  appear  at  the  proper  time  and  place,  and  answer  the  charge ; 
and  to  secure  such  appearance,  they  are  required  to  give  bond  and  se- 
curity, and  it  is  only  on  their  failure  to  give  the  bond  that  they  can 
be  imprisoned.  As  innocent  persons  are  often  confined  in  prison 
under  charges,  because  of  their  inability  to  give  bond,  the  law 
favors  bail  whenever  the  offense  is,  by  law,  bailable.  And  the 
law  favors  this  even  in  the  case  of  the  guilty,  until  trial.  This 
is  not  only  best  for  the  public,  as  it  saves  the  taxpayers  the  expense 
of  keeping  them  in  jail,  but  is  just  to  the  accused,  who  receive  the 
legal  punishment  for  their  crimes,  if  guilty,  under  the  sentence 
of  the  court  after  legal  conviction.  How,  then,  does  a  citizen  forfeit 
his  corporate  rights  as  a  member  of  a  civil  corporation,  or  his  posi- 
tion as  a  gentleman,  by  doing  an  act  that  is  not  only  encouraged  by 
the  laws  of  his  state,  but  is  a  positive  public  benefit? 

But  it  is  said  that  Dr.  Waring  was  not  expelled  for  becoming 
surety  on  the  bonds  above  mentioned,  but  for  ungentlemanly  con- 
duct in  the  presence  of  the  society.  What  ungentlemanly  conduct? 
The  ninth  by-law  requires  that  "specific  charges"  be  set  forth  and 
handed  to  the  accused  at  least  one  month  before  the  society  takes 
action  thereon.  WHiat  specific  charges  of  ungentlemanly  conduct 
in  the  presence  of  the  society,  were  ever  handed  to  Dr.  Waring? 
What  did  he  say  or  do  in  the  presence  of  the  society,  to  forfeit  his 
position  as  a  gentleman?  The  record  is  silent.  That  silence  is  sig- 
nificant. That  which  is  material  and  is  not  averred  by  the  society 
in  their  answer  is  presumed  not  to  exist.  No  ungentlemanly  conduct 
in  the  presence  of  the  society  is  set  forth  in  their  response,  and 
this  court  must  presume  that  none  existed. 

Dr.  Waring  was  convicted  of  the  charges  first  mentioned  in  ref- 
erence to  the  suretyship,  and  brought  formally  before  the  society 
and  censured.  To  this  illegal  and  unauthorized  proceeding  he  sub- 
mitted. But,  not  satisfied  with  this,  at  the  next  meeting  of  the  so- 
ciety he  was  again  brought  up,  and  his  resignation  demanded,  and 
he  was  given  until  the  succeeding  meeting  to  comply  with  the 
imperious  and  unauthorized  demand.  This  he  declined  to  do. 
And  a  preamble  and  resolution  were  then  passed,  setting  a  future 
day  when  the  society  would  vote  on  his  expulsion  for  refusing  to 


208  WAKlxXG    V.    GEORGIA    MEDICAL    SOCIETY.  §    5 

resign,  and  for  discourteous  behavior  toward  the  society  at  two  form- 
er meetings.  In  what  the  discourteous  behavior  consisted  we  are  not 
informed  by  the  record.  In  the  meantime,  however,  the  gracious 
privilege  of  avoiding  expulsion  by  resignation  was  held  out  to  Dr. 
Waring.  When  the  time  came  for  the  much  cherished  object  by  the 
infliction  of  the  extreme  penalty  of  expulsion,  Dr.  Waring  was  at 
home  sick,  and  unable  to  attend,  but  he  wrote  the  society,  disclaiming 
all  intentional  discourtesy  to  the  society  or  its  members,  and  protested 
against  the  irregularity  and  illegality  of  the  course  resolved  upon, 
as  set  forth  in  said  preamble  and  resolutions.  But  all  to  no  effect. 
His  expulsion  was  predetermined  and  that  determination  was  ex- 
ecuted. A  more  illegal  or  unjustifiable  proceeding  has  seldom  been 
brought  before  a  court. 

After  argument  had,  and  a  thorough  examination  of  this  case, 
it  is  the  unanimous  judgment  of  this  court  that  the  judgment  of  the 
court  below  be  reversed,  and  the  judge  of  the  superior  courts  of 
said  county  is  hereby  instructed  and  ordered  to  grant  a  peremptory 
mandamus  commanding  and  compelling  the  "Georgia  Medical  So- 
ciety" to  restore  the  said  Dr.  James  J.  Waring  to  all  his  rights  and 
privileges  as  a  member  in  said  society. 

See  also,  People  v.  Medical  Society,  32  N.  Y.  187;  State  v.  White,  82 
Ind.  278;  Von  Arx  v.  San  Francisco,  etc.,  Verein,  113  Cal.  377;  State  v. 
Fraternal,  etc.,  Circle,  9  Ohio  Cir.  Ct.  Rep.  364;  Lysaght  v.  St.  Louis, 
etc..   Stone  Mason's  Ass'n,  55   Mo.   .\pp.   538. 

And  compare  Roehler  v.  Aid  Society.  22  Mich.  86;  State  v.  Chamber  of 
Commerce.  20  Wis.  68;  Ex  parte  Paine,   i   Hill    CN.  Y.)   665. 

In  the  case  of  mere  voluntary  associations  the  courts  rarely  interfere; 
where,  however,  property  riphts  are  involved  it  would  seem,  in  the  absence 
of  another  remedy,  that  Mandamus  would  properly  lie.  See  People  v. 
Chicago  Bd.  of  Trade,  80  Til.  134;  State  v.  Milwaukee  Chamber  of  Com- 
merce, 47  Wis.  670;  People  v.  German,  etc..  Church,  53  N.  Y.  103;  Barrows 
V.   Massachusetts   Med.   Society,    12   Cush.    (Mass.)    402. 


MANDAMUS  TO  PRIVATE  CORPORATIONS.  209 


3.     To  enforce  the  right  to  inspect  books  and  records. 

In  re  petition  OF  HENRY  W.  T.  STEINWAY,  FOR  IN- 
SPECTION OF  BOOKS  AND  RECORDS  OF  STEIN- 
WAY &  SONS. 

1899.     New  York  Court  of  Appeals.     159  N.  Y.  250,  45  L.  R.  A. 

461. 

Vann,  J.  dehvered  the  opinion  of  the  court. 

Steinway  &  Sons,  once  a  co-partnership,  became  a  corporation 
in  1876,  under  the  general  manufacturing  act  of  1848,  and  the  relator 
has  been  a  stockholder  therein  ever  since.  He  now  holds  1,440 
shares  of  its  stock,  of  the  par  value  of  $144,000,  out  of  a  total  of 
20,000  shares,  of  the  value  of  $2,000,000,  but  with  an  r'^ual  value 
much  in  excess  of  that  sum.  He  has  not  been  an  officer  of  the  cor- 
poration since  1881,  and  he  has  had  no  means  of  knowing  much 
about  the  management  of  its  affairs  since  1892,  when  he  was  given 
an  opportunity  to  examine  the  books.  Since  then  he  has  been  sub- 
stantially ignorant  as  to  all  the  details  of  the  management,  and  has 
had  no  access  to  the  books  or  the  records.  Learning  of  certain 
practices  that  he  considered  improper,  on  April  12,  1894,  and  March 
27,  1895.  he  made  protests  in  writing  to  the  company,  but  no  at- 
tention was  paid  to  them.  On  the  6th  of  April,  1896,  he  made  a 
written  request  for  leave  to  examine  the  books,  but  receiving  no 
reply  on  the  T5th  of  that  month  he  wrote  requesting  information, 
proper  in  character,  upon  certain  subjects ;  and  to  this  communica- 
tion, he  received  an  answer  from  the  secretary,  dated  April  23,  1896, 
written  in  behalf  of  the  board  of  trustees,  virtually  refusing  the 
information  asked  for.  on  the  ground  that  the  relator  intended  to  use 
it  in  "hostility  to  the  interest  of  the  stockholders."  On  the  5th  of 
April,  1897,  he  endeavored  to  ascertain  certain  material  facts  at  the 
annual  meeting,  but  without  success ;  and  thereupon  he  requested 
the  officers  and  directors  to  afford  his  accountants  and  attorneys 
access  to  the  books  of  account,  vouchers  and  records  of  the  com- 
pany for  the  years  1892  to  1896  inclusive,  for  the  purpose  of 
examining  the  same.  Receiving  no  reply  on  the  8th  of  May,  1897. 
he  served  a  written  request  upon  the  treasurer  for  a  statement  in 
writing  under  oath,  of  the  affairs  of  the  company,  embracing  a  par- 
ticular account  of  all  its  assets,  and  its  liabilities  for  each  of  the 
several  fiscal  years  from  1892  to  1896,  inclusive ;  and  in  response 
to  this  he  received  a  general  statement  placing  the  assets  at  more  than 
$3,000,000,  but  distributed  into  only  fourteen  items,  eight  of  which 
were  over  $100,000  each.  The  liabilities  included  but  eight  items, 
three  of  which  were  the  capital  stock,  the  surplus,  and  the  profit  of 


210  IN    RE  PETITION   OF    HENRY   W.   T.    STEINWAY.  §    5 

1896.  This  was  the  first  information  as  to  the  company's  affairs 
which  the  petitioner  had  been  able  to  obtain  in  five  years,  except  that 
he  once  saw  the  balance  sheet  and  inventory  of  1893.  Since  1891 
the  dividends  declared  by  the  company  have  dwindled  in  amount. 
In  1896  the  dividend  was  only  five  per  cent,  but  never  before  since 
1883  had  less  than  10  per  cent,  and  sometimes  as  much  as  18  or  20 
per  cent.,  been  divided  in  dividends.  The  relator  claimed  in  his  pe- 
tition for  a  writ  of  mandamus  to  permit  inspection  of  the  books, 
that  the  officers  of  the  corporation  were  engaged  in  an  attempt  to 
form  an  English  stock  company  for  the  control  of  its  business,  with 
the  design  of  selling  their  shares  of  the  capital  stock,  or  exchanging 
them  for  a  much  greater  number  of  shares  of  stock  in  the  English 
company,  and  that  efforts  had  been  made  by  the  stockholders  and 
directors  to  induce  him  to  sell  his  stock  at  $250  per  share ;  but. 
as  he  insisted,  it  was  impossible  for  him  to  fix  upon  any  price  without 
an  opportunity  to  investigate  the  condition  of  the  company.  He 
specified  various  acts  which  he  alleged  to  be  improper  on  the  part 
of  the  officers,  such  as  the  payment  of  exorbitant  rentals,  carrying  on 
a  banking  business,  allowing  unusual  rates  of  interest,  inventorying 
the  assets  too  low,  and  paying  the  trustees  salaries,  with  no  equiva- 
lent in  services.  The  opposing  affidavits  contain  a  large  amount  of 
matter  relating  to  aggravating  conduct  on  the  part  of  the  relator 
in  the  past,  and  alleging  improper  motives  and  ulterior  aims  on 
his  part.  Many  general  allegations  of  the  petition  were  denied  in 
haec  verba,  without  stating  the  real  facts.  The  president,  and  other 
officers  of  the  corporation,  denied  the  allegations  of  improper  con- 
duct on  their  part,  and  claimed  that  the  relator  wished  to  force 
them  to  buy  out  at  an  extravagant  price.  As  no  alternative  writ  was 
issued,  and  the  relator  proceeded  to  argument  upon  his  petition 
and  the  opposing  affidavits,  his  right  to  a  peremptory  writ  depends 
upon  the  conceded  facts,  the  same  as  if  he  had  demurred  to  the  alle- 
gations of  the  defendants.  People  v.  New  York  Central,  etc.  R. 
Co.,  156  N.  Y.  570;  Haebler  v.  New  York  Produce  Exchange,  149 
N.  Y.  414;  People  v.  Brooklyn,  149  N.  Y.  215  ;  People  v.  Rome,  etc. 
R.  Co.  103  N.  Y.  95 ;  Code  Civ.  Proc.  §  2070. 

CThe  appellate  division  certified  the  following  question  for  de- 
cision: "lias  the  supreme  court  the  power,  upon  the  petition  of  a 
stockholder,  to  compel  by  mandamus  the  corporation  to  exhibit 
its  l)r)f)ks  for  inspection  ?"  The  court  of  appeals  lield  that  all  the 
powers  of  the  court  of  king's  bench  .uid  the  court  of  chancery, 
as  llicy  existed  when  the  first  constitution  of  N^cw  York  was  adopted, 
blcnfjed  and  continued  in  the  supreme  court  of  the  state,  except  as 
modified  by  the  constitution  or  statute.) 

The  right  of  a  corporator,  who  has  an  interest,  in  common  with 
the  nfher  corporators,  to  inspect  the  l)ooks  and  jiapers  of  the  cor- 
poratif.n.  for  a  proper  purpose  and  under  reasonable  circumstances. 


8    5  MANDAMUS  TO  PRIVATE  CORPORATION'S.  211 

was  recognized  by  the  court  of  king's  bench  and  chancery  from 
an  early  day,  and  enforced  by  motion  or  mandamus,  but  always  with 
caution,  so  as  to  prevent  abuse.  Rex  v.  Newcastle-upon-Tyne,  2 
Str.  (K.  B.)  1223,  and  note;  Gery  v.  Hopkins,  7  Mod.  Rep.  (K.  B.) 
129,  case  175;  Richards  v.  Pattison,  Barnes  (Notes  of  Cases)  235; 
Young  V.  Lynch,  i  W.  Blackstone,  2^  \  Rex  v.  Shelley,  3  T.  R.  (K. 
B.)  141 ;  King  v.  Babb,  3  T.  R.  (K.  B.)  579,  580 ;  King  v.  Merchants 
Tailors,  Co.,  2  Barn.  &  Aid.  (K.  B.)  115;  Re  Burton,  31  L.  J. 
(O.  B.  N.  S.)  62;  Re  West  Devon  Great  Consols  Mine,  Law  Rep. 
27  (Ch.  Div.)  106.  Lord  Kenyon,  in  rendering  a  judgment  in  King 
v.  Babb,  assumed  "that  in  certain  cases  the  members  of  a  corporation 
may  be  permitted  to  inspect  all  papers  relating  to  the  corporation." 
In  Gery  v.  Hopkins,  the  court  on  granting  the  order  to  produce,  said  : 
■'There  is  great  reason  for  it,  for  they  are  books  of  a  public  company 
and  kept  for  public  transactions,  in  which  the  public  are  concerned, 
and  the  books  are  the  title  of  the  buyers  of  stocks,  by  act  of  Parlia- 
ment.'' In  Rex  v.  Newcastle-on-Tyne,  the  reporter  states  that  the 
court  said :  "Every  member  of  the  corporation  had,  as  such,  a  right 
to  look  into  the  books  for  any  matter  that  concerned  himself,  though 
it  was  a  dispute  with  others." 

The  courts  of  other  states  compel  the  officers  of  corporations 
to  allow  the  stockholders  to  examine  the  books  upon  due  application 
for  a  proper  purpose.  In  Lewis  v.  Brainerd,  53  Vt.  520,  the  court 
said :  "The  shareholders  in  a  corporation  hold  a  franchise  and  are 
the  owners  of  the  corporate  property ;  and  as  such  owners  they  have 
the  right,  at  common  law,  to  examune  and  inspect  all  the  books  and 
records  of  the  corporation  at  all  seasonable  times,  and  to  be  thereby 
informed  of  the  condition  of  the  corporation  and  its  property." 
In  Huyler  v.  Craigin  Cattle  Co.,  40  N.  J.  Eq.  392,  398,  it  was  said : 
"Stockholders  are  entitled  to  inspect  the  books  of  the  company 
for  proper  purposes  at  proper  times,  and  they  are  entitled  to  such 
inspection,  though  their  only  object  is  to  ascertain  whether  their 
affairs  have  been  mismanaged  or  that  their  interests  have  been  prop- 
erly conducted  by  the  directors  or  the  managers.  Such  a  right 
is  necessary  to  their  protection.  To  say  that  they  have  the  right, 
but  that  it  can  be  enforced  only  when  they  have  been  ascertained 
in  some  way,  without  the  books,  that  their  affairs  have  been  mis- 
managed or  that  their  interests  are  in  danger,  is  practically  to  deny 
the  right  in  the  majority  of  cases.  Often  times  frauds  are  discover- 
able only  by  an  examination  of  the  books  by  an  expert  accountant. 
The  books  are  not  the  private  property  of  the  directors  or  the  man- 
agers, but  are  the  records  of  their  transactions  as  trustees  for  the 
stockholders."  In  Commonwealth  v.  Phoenix  Iron  Co.,  105  Pa.  iii, 
116,  51  Am.  Rep.  184,  the  rule  was  laid  down  that  "unless  the 
charter  provides  otherwise,  a  shareholder  in  a  trading  corporation 
has  the  right  to  inspect  the  books  and  papers,  and  to  make  minutes 


212  IX    RE   PETITION   OF    HEN'RY    \V.    T.    STEINWAY.  ^    5 

from  them,  for  a  definite  and  proper  purpose,  at  reasonable  times. 
The  doctrine  of  the  law  is  that  the  books  and  papers  of  the  cor- 
poration, though  of  necessity  kept  in  some  one  hand,  are  the  common 
property  of  all  the  stockholders."  Upon  a  second  appeal  in  the  same 
case,  sub  nom.  Phoenix  Iron  Co.  v.  Commonwealth,  113  Pa.  563, 
C;-j2,  the  court  said:  "Under  the  circumstances  mentioned,  and  for 
the  purposes  stated,  we  are  of  the  opinion  that,  and  according  to 
our  ruling,  when  the  case  was  here  before,  the  relator  is  clearly  en- 
titled to  an  examination  of  the  books  and  papers  of  the  company. 
Such  a  right  is,  of  course,  not  to  be  exercised  to  gratify  curiosity  or 
for  speculative  purposes,  but  in  good  faith  and  for  a  specific  honest 
purpose,  and  where  there  is  a  particular  matter  in  dispute,  involving 
and  affecting  seriously  the  rights  of  the  relator  as  a  stockholder.  *  '■'  * 
A  stockholder  in  a  trading  corporation  must  certainly  have  some 
rights  which  a  board  of  directors  should  respect.  Sellers  (the  relator) 
was  not  bound  to  accept  the  mere  statement  of  the  board,  whether 
under  oath  or  otherwise,  as  to  the  contents  of  the  books,  etc.  He 
had  a  right  to  a  reasonable  inspection  of  them,  and,  with  the  aid  of 
a  disinterested  expert,  might  make  such  extracts  as  were  reasonably 
required  in  the  preparation  of  the  bill  he  purposed  to  bring.  The  re- 
lator, we  think,  has  a  clear  right,  under  the  writ  and  return,  to  the 
relief  he  asks,  and  it  is  plain  that  he  has  no  specific  legal  remedy  for 
the  enforcement  of  that  right ;  and  the  existence  of  a  supposed  equit- 
able remedy  is  not  a  ground  for  refusing  the  mandamus."  In  Cock- 
burn  V.  Union  Bank,  13  La.  Ann.  289,  290,  the  court,  in  granting  a 
mandamus  requiring  the  officers  of  a  corporation  to  allow  access  by  a 
stockholder  to  the  books,  said  :  "A  stockholder  in  a  corporation  pos- 
sesses all  his  individual  rights,  except  so  far  as  he  is  deprived  of  them 
by  the  charter  or  the  law  of  the  land ;  as  long,  then,  as  the  charter, 
or  the  rules  and  by-laws  passed  in  conformity  thereto,  and  the  law, 
do  not  restrict  his  individual  rights,  he  possesses  them  in  full,  and 
can  demand  to  exercise  them.  It  cannot  be  denied  that  it  is  the 
right  of  everyone  to  see  that  his  pro])crty  is  well  managed,  and  to 
have  access  to  the  proper  sources  of  knowledge  in  this  respect." 
The  same  court,  in  a  like  case,  declared  that  a  stockholder  in  a  trad- 
ing corporation  "has,  in  the  very  nature  of  things,  and  upon  princi- 
ples of  equity,  good  faith,  and  fair  dealing,  the  right  to  know  how 
the  affairs  of  the  company  are  conducted. — whether  the  capital  of 
which  he  has  contributed  so  large  a  share  is  being  prudently  and 
profitably  employed  or  otherwise.  In  order  to  compl}-  with  this 
call,  and  to  vote  understandingly,  it  was  certainly  requisite  for  the 
relator,  to  know  the  condition  of  the  affairs  and  the  business  opera- 
tions of  the  company,  and  be  enabled  from  this  knowledge  to  act 
for  the  best  interests  of  the  stockholders  and  the  company."  State 
V.  Hicnville  <  )il  Works  Co.,  2<S  La.  .^nn.  204,  208.  See  also  Stone 
V.  Kellogg.  1^5  III.  192.  .]('  N.  K.  222;  Stettauer  v.  Construction  Co., 


§    5  MANDAMUS  TO  I'RIVATE  CORPORATIONS.  21T, 

42  N.  J.  Eq.  46;  People  v.  Walker,  9  Mich.  328;  State  v.  Bergen- 
thal,  72  Wis.  314- 

The  elementary  works  unite  in  holding  that  the  corporator  has  the 
right  in  question,  and  that  mandamus  is  the  proper  remedy.  Air. 
Wait,  in  his  work  on  Insolvent  Corporations,  after  reviewing  the 
authorities  says :  "It  will  be  apparent  from  an  examination  of  these 
authorities  that  the  rule  in  favor  of  a  stockholder's  right  of  inspec- 
tion and  investigation  of  corporate  books  and  papers  is  becoming 
very  broad  and  general."  §  504.  But,  while  the  learned  author  rec- 
ognizes the  rule,  he  insists — and  we  agree  with  him — that  an  in- 
spection should  not  be  "granted  to  facilitate  speculative  schemes  or 
to  gratifv  idle  curiosity."  He  declares  that  "mandamus  is  the  most 
complete  and  effective  form  of  redress  available  to  a  stockholder  or 
party  in  case  of  the  denial  of  the  right  of  inspection."  §  516.  Mr. 
Cook,  in  discussing  the  question,  says  that  "the  stockholders  of  a 
corporation  had,  at  common  law,  a  right  to  examine  at  any  reason- 
able time  and  for  any  reasonable  purpose,  any  one  or  all  of  the 
books  of  the  corporation.  This  rule  grew  out  of  the  analogous  rule 
applicable  to  public  corporations  and  to  ordinary  copartnerships,  the 
books  of  which,  by  well  established  law,  are  always  open  to  the  in- 
vestigation of  members.  2  Cook  Stock  &  Stockholders.  §  511.  "The 
prevailing  doctrine  in  the  United  States  is  said  to  permit  an  incorpo- 
rator the  same  freedom  in  examining  the  books  of  the  company  as  a 
partner  has  with  respect  to  the  books  of  his  firm.  But  the  right 
only  extends  to  such  documents  as  are  necessary  to  the  stockholder's 
particular  purpose.  Statutes  giving  the  shareholders  of  corporations 
the  right  to  inspect  the  corporate  books  have  been  passed  in  many 
of  the  American  states  and  in  England.  These  statutes,  however, 
do  not  supplant  the  common  law  right."  i  Beach  Private  Corp., 
^  75.  Judge  Thompson,  in  his  work  on  Corporations  says :  "One  of 
the  principles  incident  to  ownership  of  stock  in  a  corporation  is  that 
of  an  inspection  of  the  books  and  the  condition  of  the  company,  and 
this  privilege,  in  general,  becomes  a  right  when  the  inspection  is 
sought  at  the  proper  time  and  for  the  proper  purposes."  §  4406.  He 
further  declares  that  when  the  right  is  guaranteed  by  statute  the  mo- 
tive for  its  exercise  is  immaterial,  but  when  it  rests  upon  the  com- 
mon law  it  will  not  be  allowed  for  speculative  purposes,  the  gratifi- 
cation of  curiosity,  or  where  its  exercise  would  produce  great  incon- 
venience. §§  4412-4420.  See  also  Angel  &  Ames  Corp.,  9th  Ed., 
§  681  ;  Morawetz  Priv.  Corp.,  §  473  ;  High  Extr.  Leg.  Rem.,  §  308, 
19  Am.  &  Eng.  Ency.  of  Law,  p.  231. 

We  think  that,  according  to  the  decided  weight  of  authority,  a 
stockholder  has  the  right  at  common  law  to  inspect  the  books  of  his 
corporation  at  the  proper  time  and  place,  and  for  a  proper  purpose, 
and  that,  if  this  right  is  refused  by  the  officer  in  charge,  a  writ  of 
mandamus  may  issue,  in  the  sound  discretion  of  the  court,  with  suit- 


214  IN    RE  PETITION   OF    HENRY   W.   T.   STEINWAY.  §    5 

able  safe-guards  to  protect  the  interests  of  all  concerned.  It  should 
not  be  issued  to  protect  a  blackmailer,  nor  withheld  simply  because 
the  interest  of  the  stockholder  is  small ;  but  the  court  should  proceed 
cautiously  and  discreetly,  according  to  the  facts  of  the  particular 
case.  To  the  extent,  however,  that  an  absolute  right  is  conferred  by 
the  statute,  nothing  is  left  to  the  discretion  of  the  court;  but  the 
writ  should  issue  as  a  matter  of  course  although  even  then,  doubt- 
less, due  precaution  may  be  taken  as  to  time  and  place,  so  as  to  pre- 
vent interruption  of  business  or  other  serious  inconvenience. 

The  appellants,  however,  insist  that  certain  statutory  provisions 
relating  to  the  subject  are  exclusive,  and,  as  they  do  not  extend  to 
the  case  under  consideration,  that  the  appellate  division  had  no  right 
to  grant  the  writ. 

We  think  that  the  common  law  right  of  a  stockholder  with  refer- 
ence to  the  inspection  of  the  books  of  his  corporation  still  exists  un- 
impaired by  legislation;  that  the  supreme  court  has  power,  in  its 
sound  discretion,  upon  good  cause  shown  to  enforce  the  right;  and 
that  such  power  is  a  part  of  its  general  jurisdiction  as  the  successor 
of  the  courts  of  the  colony  of  New  York,  which  had  the  jurisdiction 
of  the  court  at  king's  bench  and  the  court  of  chancery  in  England. 

It  follows  that  the  order  appealed  from  should  be  affirmed,  with 
costs,  and  that  the  question  certified  should  be  answered  in  the 
affirmative. 

All  concur. 

See  also,  Lewis  v.  Brainerd,  53  Vt.  510;  Stone  v.  Kellogg,  165  111.  192; 
State  V.  Laughlin,  53  Mo.  App.  542;  Rex  v.  Newcastle,  etc.,  2  Strange, 
1223;  Lyon  V.  American  Screw  Co.,  16  R.  I.  472;  Ellsworth  .v.  Dorwart, 
95  Iowa  108 ;  State  v.  St.  Louis  &  S.  F.  R.  R.  Co.,  29  Mo.  App.  301 ;  Weihen- 
mayer  v.   Bitner,  88  Md.  325. 

Right  to  make  memoranda  and  take  copies;  Deaderick  v.  Wilson,  8  Baxt. 
(Tenn.)  108;  Hyde  v.  Holmes,  2  MoUoy  372;  Swift  v.  Richardson,  7  Houst. 
(Del.)    338. 

As  against  foreign  corporations;  Richardson  v.  Swift,  7  Houst.  (Del.) 
338.  and  People  v.  Northern  Pac.  R.  R.  Co.  18  Jones  &  S.  (N.  Y.)  456. 
Contra— Re   Rappleye,  59   N.   Y.   S.   338. 

As  against  insolvent  corporations  see  Chable  v.  Nicaraugua  Canal  Con- 
struction Co.,  59  Fed.  Rep.  846. 

See  generally  the  very  valuable  note  appended  to  45  L.  R.  A.  456. 


§    5  -MANDAMUS  TO  PRIVATE  CORPORATIONS.  215 

4.     To  compel  a  transfer  of  shares  of  stock. 

STATE  EX  REL.  BROSS  et  al.  v.  CARPENTER  et  al. 

1894.     Supreme  Court  of  Ohio.    51  Ohio  St.  83;  46  Am.  St.  Rep. 
556;  37  N.  E.  261. 

Williams,  J.  The  original  action  was  mandamus,  brought  in 
the  court  of  common  pleas  of  Ashtabula  county  by  the  plaintiff  in 
error  against  the  president,  secretary  and  treasurer  of  the  Baker 
Engine  &  Machine  Company,  a  manufacturing  corporation  organ- 
ized in  this  state,  to  compel  them  to  issue  to  the  relators,  Bross  and 
Baker,  certificates  for  310  shares  of  the  company's  stock,  of  $100 
each,  which  it  is  alleged  the  relators  duly  subscribed  and  paid  for, 
and  for  which  the  defendant  refuses  to  issue  certificates  to  them. 
The  relators  allege,  in  general  terms,  that  they  have  no  adequate 
remedy  at  law,  and  pray  for  a  peremptory  writ.  The  answer  denies 
that  the  relators  paid  for  the  stock,  or  paid  any  sum  whatever  on 
their  subscription,  and  avers  that  they  are  indebted  to  the  company 
for  the  full  amount  thereof,  namely,  $31,000.  The  court  found  the 
issues  for  the  defendants,  and  found  furthermore,  that  the  remedy  of 
the  relators  at  law  was  adecjuate,  and  on  both  grounds  denied  the 
writ.  The  circuit  court  to  which  the  cause  was  taken  on  appeal, 
stated  its  conclusions  of  law  and  of  fact  separately,  at  the  request 
of  the  plaintiff.  It  found  that  the  relators  fully  paid  for  the  stock, 
and  were  entitled  to  the  certificates,  but  held  that  their  remedy  was 
in  equity,  and  for  that  reason  refused  the  writ ;  and  it  is  claimed 
here  that  in  so  holding,  the  court  committed  an  error. 

The  cases  are  in  conflict  whether  the  remedy  by  mandamus  may 
be  employed  to  compel  the  issue  or  transfer  of  certificates  of  stock 
of  a  private  corporation.  The  remedy  in  this  state  is  controlled  by 
statutory  regulations,  which  define  the  writ  and  determine  the  cases 
in  which  it  will  issue.  "Mandamus  is  a  writ  issued  in  the  name  of  the 
state,  to  an  inferior  tribunal,  a  corporation,  board  or  person,  com- 
manding the  performance  of  an  act  which  the  law  specially  enjoins 
as  a  duty  resulting  from  an  office,  a  trust  or  station."  Rev.  Stat., 
§  6741.  A  limitation  upon  the  remedy  is  contained  in  section  6744, 
which  provides  "that  the  writ  must  be  issued  in  a  case  where  there 
is  a  plain  and  adequate  remedy  in  the  ordinary  course  of  law."  The 
duty  of  issuing  certificates  of  stock  of  a  private  corporation  to  those 
entitled  to  receive  them  is  specially  enjoined  upon  its  officers,  it  is 
claimed,  by  the  following  provision  contained  in  section  3254  of  the 
Revised  Statutes,  viz. — ^"Stockholders  shall  be  entitled  to  receive 
certificates  of  their  paid  up  stock  in  the  company,  and  the  president 
and  secretary  of  the  company  shall  upon  demand,  execute  and  de- 
liver to  a  stockholder  a  certificate  showing  the  true  amount  of  the 


2l6  STx\TE  EX  REL.   BROSS  ET  AL.  V.   CARPENTER  ET  AL.  ^    5 

Stock  held  by  him  in  the  company."  And  we  tliink  that  there  can 
be  no  doubt  that  the  corporation  is  bound,  through  its  proper  offi- 
cers to  issue,  to  each  stock  subscriber  who  has  fully  paid  for  his 
stock,  a  certificate  truly  representing  his  interest  in  the  corporation. 
But  the  question  still  remains  what  is  the  appropriate  remedy  for 
the  refusal  or  failure  to  do  so?  If  there  be  a  "plain  and  adequate 
remedy  in  the  ordinary  course  of  the  law",  the  courts  are  prohibited 
bv  statute  from  issuing  the  writ.  Shares  of  stock  in  a  private  cor- 
poration are  personal  property ;  and  it  has  long  been  settled  that  an 
action  for  damages  for  their  conversion  may  be  maintained  upon  the 
refusal,  on  demand,  to  issue  or  transfer  certificates  to  persons  en- 
titled to  them.  True  there  has  not  ahvays  been  uniformity  in  the 
rule  applied  in  determining  the  measure  of  the  damages  in  such 
cases, — it  being  held  in  some  that  the  value  of  the  stock  at  the  time 
of  the  conversion  is  the  measure  of  the  damages  that  may  be  recov- 
ered ;  in  others,  its  value  at  the  time  of  the  trial ;  and  in  still  others, 
its  highest  value  at  any  time  between  the  time  of  the  conversion  and 
the  time  of  the  trial.  The  first  of  these  rules  above  stated  is  the  one 
which  seems  generally  to  prevail,  unless  there  is  something  in  the 
nature  or  circumstances  of  the  conversion  to  enhance  the  damages. 
Rut  the  damages  are  not  necessarily  limited  to  the  market  value  of 
the  stock.  Its  actual  value  may  be  recovered  and  that  may  be  shown 
by  proof  of  the  value  of  the  property  and  business  of  the  corporation, 
its  good  will  and  dividend  earning  capacity.  Freon  v.  Carriage 
Company,  42  Ohio  St.  38;  Cook  Stocks  &  S.,  §  581.  Besides  "rem- 
edy in  the  ordinary  course  of  the  law"  is  not  confined  to  those  ac- 
tions which,  before  the  adoption  of  the  civil  code,  were  actions  at 
law,  but  embraces  suits  in  equity  as  well ;  and  if,  for  any  reason,  an 
action  for  damages  might  prove  inadequate  for  the  full  redress  of 
Ihe  relator's  injury,  we  see  no  reason  why  they  could  not  obtain  that 
full  measure  of  relief  in  equity.  It  was  held  by  this  court  in  Railroad 
Company  v.  Fink,  41  Ohio  St.  321,  that  a  suit  in  equity  may  be  main- 
tained against  a  cor]ioration  to  compel  it  to  issue  a  stock  certificate 
to  a  subscriber  or  assignee  upon  a  tender  of  the  sum  subscribed. 
Indeed,  that  remedy  is  well  established,  and  is  the  one  generally 
ymrsued  in  such  cases,  and  also  in  cases  where  the  transfer  of  stock 
r.n  the  books  of  the  corporation,  or  a  certificate  of  such  transfer,  is 
sought.  Cook,  Stocks  &  S.,  §§  61,  391.  In  the  last  section  cited, 
that  author  says  that  the  remedy  by  suit  in  equity  is  the  most  com- 
plete and  most  just  one  for  compelling  a  corporation  to  register  a 
transfer  of  stock,  and  is  a  remedy  applicable  to  almost  all  cases  aris- 
ing under  a  refusal  of  a  corporation  to  allow  a  registry  of  a  trans- 
fer. The  case  will  be  decided  on  equitable  principles,  however,  and 
a  transfer  will  not  be  decreed  if  it  involves  bad  faith.  The  relief 
tistially  dcmanrlcd  is  in  the  alternative,  being  either  for  a  registry 
ol  the  transfer  or  damages  in   lieu  thereof."     The   reasons   which 


§    5  MANDAMUS  TO   PRIVATE  CORPORATIONS.  217 

conduce  to  the  holding  that  a  suit  in  equity  is  the  most  satisfactory 
and  complete  remedy  to  accomplish  the  registration  of  transfers  of 
stock  apply  equally  when  the  object  sought  is  the  issue  of  certificates 
originally.  Mandamus  is  not  well  adapted  to  the  trial  of  questions 
of  fact  or  a  determination  of  controversies  of  a  purely  private  na- 
ture. Its  office  is  rather  to  command  and  enforce  the  performance 
of  those  duties  in  which  the  public  have  some  concern,  and  where 
the  right  is  clear,  and  does  not  depend  upoii  a  complication  of  dis- 
puted facts  which  must  be  settled  from  the  conflicting  testimony  of 
witnesses.  There  is  nothing  in  the  facts  of  the  case  before  us  which 
show  that  an  action  for  damages,  or  suit  in  equity,  would  not  furnish 
the  relators  a  plain  and  adequate  remedy  for  the  wrong  complained 
of.  It  is  not  alleged  that  the  corporation  has  refused  to  admit  them 
as  members  of  that  body,  or  denied  them  the  right  to  vote  or  be 
voted  for,  or  to  exercise  their  privileges  as  stockholders,  nor  that 
any  of  their  personal  advantages  or  privileges  as  such  have  been  in- 
terfered with.  The  writ  of  mandamus  has  sometimes  been  granted 
to  compel  the  admission  of  members  in  corporate  bodies  when  essen- 
tial to  the  preservation  of  personal  advantages  to  which  they  show 
themselves  to  be  clearly  entitled.  The  petition  alleges  in  general 
terms  that  the  relators  "have  no  remedy  at  law" ;  but  that  amounts 
to  no  more  than  a  declaration  of  the  pleatler's  opinion,  and  as  an  al- 
legation of  fact,  is  without  force.  Our  conclusion  is  that  where  the 
officers  of  a  private  corporation  organized  for  profit  refuse,  upon  de- 
mand, to  issue  a  certificate  of  stock  to  a  person  entitled  thereto,  his 
appropriate  remedy  is  by  action  against  the  corporation  for  damages, 
or  in  equity  to  enforce  the  issue  and  delivery  of  the  certificate.  If, 
for  any  reason,  the  one  does  not,  the  other  will,  afford  him  a  plain 
and  adequate  remedy,  and  he  may  resort  to  either  at  his  election. 
Mandamus  cannot,  therefore,  be  properly  invoked.  Judgment  af- 
firmed. 

In  accord: — Freon  v.  Carriage  Co.,  42  Oh.  St.  30;  Kimball  v.  Union 
Water  Co.,  44  Cal.  173;  Stackpole  v.  Seymour,  127  Mass.  104;  Murraj' 
V.  Stevens,  no  Mass.  95;  Rex  v.  Bank  of  England,  2  Doug.  524;  Birming- 
ham Fire  Insurance  Company  v.  Commissioners,  92  Pa.  St.  "72;  Shipley  v. 
Mechanics  Bank,  10  Johns.  CN.  Y.)  484;  State  v.  People's  Building  and 
Loan  Association,  etc..  43  N.  J.  L.  389;  Baker  v.  Marshall,  15  Minn.  177; 
Tobey  v.  Hakes,  54  Conn.  274. 

But  in  the  case  of  quasi-public  coporations  or  public  service  companies 
vested  with  the  power  of  eminent  domain  the  writ  has  been  granted  on 
the  theory  that  the  duty  to  issue  or  transfer  such  stock  was  a  public  or 
quasi-public  dutv.     Reg.  v.  Lambourn  Valley  Railroad  Company,  22  Q.   B. 

D.  463- 

Where  title  of  stock  has  come  from  purchase  at  a  judicial  sale  thereof, 
the  vendee  has  been  held  entitled  to  the  writ  to  compel  a  transfer  of  the 
stock  on  the  books  of  the  corporation.  People  v.  Goss  Manufacturing  Com- 
pany, 99  111.  355;  Hair  v.  Burnell,  106  F.  280;  Bailey  v.  Strohecker,  38 
Ga.  259. 


21 8  THE  PARTIES.  §    6 


Section  6. — The  Parties. 

While  the  remedy  by  Mandamus  may  be  invoked  for  the  purpose 
of  enforcing  either  a  purely  private  right,  unconnected  with  a  pub- 
lic interest,  or  a  purely  public  right,  where  the  people  at  large  are 
the  real  party  in  interest,  in  modern  practice  it  is  more  frequently 
called  into  requisition  for  the  former  purpose  than  for  the  latter, 
although  the  fiction  and  theory  of  a  public  interest  involved  is  often 
retained  even  in  cases  where  the  real  object  is  solely  the  protection 
of  private  interests  and  the  enforcement  of  private  rights.  In  both 
cases,  however,  the  proceedings  are  instituted  usually  in  the  name 
of  the  People  or  the  State  upon  the  relation  of  the  party  who  has 
been  aggrieved.  It  is  difficult,  to  say  the  least,  to  perceive  any  sat- 
isfactory reason  why  such  proceedings  should  not  be  conducted,  as 
in  all  ordinary  actions  which  have  for  their  object  the  protection  and 
security  of  private  rights,  in  the  name  of  the  real  party  in  interest, 
both  as  plaintiff  and  defendant,  without  adhering  to  the  purely  for- 
mal practice  of  introducing  the  State  or  People  as  prosecutor.  Es- 
pecially is  this  true  in  those  states  where  there  has  been  such  a  pro- 
nounced attemipt  to  "simplify"  the  matter  of  pleading  by  means  of 
the  code.  This  method  of  instituting  the  proceedings  in  the  name 
of  the  State  is,  however,  of  very  ancient  origin  and  doubtless  has 
its  foundation  in  the  principle  formerly  underlying  the  issue  of  the 
writ,  whereby  the  writ  of  Mandamus  was  not  regarded  as  a  writ 
of  right  but  purely  a  prerogative  writ,  issuable  only  at  the  will  and 
pleasure  of  the  Sovereign,  and  therefore  issued  only  in  his  name. 
The  tendency  of  modern  practice  is  to  disregard  the  prerogative 
feature  of  the  writ  and  to  treat  it  as  an  ordinary  writ  of  right,  issu- 
able as  of  course,  upon  proper  cause  duly  shown.  Some  of  the 
states,  however,  still  adhere  to  the  prerogative  features  of  the  writ, 
especially  where  the  same  is  sought  by  the  State  Attorney  as  against 
some  public  office  or  officer.  There  is  a  pronounced  tendency  to  re- 
gard the  use  of  the  name  of  the  Sovereign,  as  prosecutor,  as  merely 
nominal,  and  the  remedy  essentially  as  a  civil  remedy. 

"In  this  country  a  mandamus  cannot  in  any  strict  sense  be  termed 
-.1.  prerogative  writ,  and  much  confusion  of  ideas  has  resulted  from 
the  efforts  of  many  courts  to  attach  prerogative  features  to  the  rem- 
edy, as  used  in  the  United  States.  This  confusion  has  resulted 
cliicny  from  a  failure  to  properly  discriminate  between  the  English 
and  -American  systems.  Under  the  English  constitution,  the  king 
is  the  fountain  and  source  of  justice,  and  when  the  law  did  not  af- 
ford a  remedy  by  the  regular  forms  of  proceedings,  the  prerogative 
powers  of  the  sovereign  were  invoked  in  aid  of  the  ordinary  judicial 
powers  of  the  courts,  and  the  mandamus  was  issued  in  the  king's 
name,  and  by  the  court  of  king's-bench  only,  as  having  a  general 


§■  6  THIi    PARTIES.  219 

.sui)ervisory  power  over  all  inferior  tribunals  and  officers.  Origin- 
ally, too,  the  king  sat  in  his  own  court  in  person  and  aided  in  the  ad- 
ministration of  justice;  and  although  he  has  long  since  ceased  to  sit 
there  in  person,  yet  by  a  fiction  of  law  he  is  still  so  far  presumed  to 
be  present  as  to  enable  the  court  to  exercise  its  prerogative  powers 
in  the  name  and  by  the  authority  of  the  sovereign.  xA.nd  the  fact 
that  a  mandamus  was  formerly  allowed  only  in  cases  affecting  the 
sovereign,  or  the  interests  of  the  public  at  large,  lent  additional 
weight  to  the  prerogative  theorv  of  the  writ."  High  Ex.  Leg.  Rem., 
§3. 


I.     Plaintiff. 

STATE  EX  REL.  HUSTON  et  al.  v.  COMMISSIONERS  OF 
PERRY  COUNTY. 

1856.     Supreme  Court  of  Ohio.     5  Ohio  St.  497. 

(Mandamus  to  compel  completion  of  county  buildings.) 
ScoTT^  J.  A  question  has  been  made  in  this  case,  whether  the 
proper  parties  are  before  the  court.  The  respondents  claim  that  the 
State  of  Ohio  is  not  a  proper  party,  and  that  the  relators  have  not 
such  an  interest  in  the  subject  matter  as  w'ill  entitle  them  to  the  rem- 
edy which  they  seek.  The  570th  section  of  the  code  provides  that 
the  "writ  may  issue  on  the  information  of  the  party  beneficially  in- 
terested," and  we  think  the  facts  stated  in  the  information  show  such 
a  beneficial  interest  in  the  relators  as  should  entitle  them  to  relief. 
The  subject-matter  of  the  complaint  is  the  refusal  by  the  public  "offi- 
cers to  perform  a  duty  imposed  on  them  by  law,  and  in  a  case  like 
the  present,  it  must  be  difficult  to  point  out  any  mode  of  attaining 
adequate  redress,  if  the  performance  of  that  duty  cannot  be  en- 
forced by  mandamus. 

The  question  as  to  the  prosecution  of  the  writ  in  the  name  of  the 
state,  is  purely  technical ;  and  if  this  mode  of  prosecution  be  informal 
under  the  code,  leave  would  of  course  be  given  to  amend.  But  we 
incline  to  think  this  mode  of  proceeding  in  mandamus  proper.  The 
writ  is,  from  its  very  nature  and  definition,  "a  command  issuing  in 
the  name  of  the  sovereign  authority."  Bouvier's  Diet.  Blackstone 
says,  "It  is  a  command  issuing  in  the  king's  name."  In  the  United 
States  it  has  always  been  issued  in  the  name  of  the  sovereignty  by 
which  it  was  authorized.  We  apprehend  the  code  does  not  contem- 
plate an  essential  change  in  the  character  of  the  writ  or  the  pro- 
ceedings under  it.  From  the  nature  of  the  remedy,  this  suit,  then, 
is  properly  prosecuted  in  the  name  of  the  state.     *     *     * 


220  STATE  EX  REL.   TAYLOR  ET  AL.  V.    MOUNT  ET  AL.  §    6 

STATE  EX  REL.  WEAR  v.  FRANCIS. 
1888.     Supreme  Court  of  Missourl     95  AIo.  44. 

Sherwood,  J.     (Omitting  part  of  the  opinion.) 

I.  Before  going  into  the  merits  of  the  case,  however,  a  prelim- 
inary question  must  first  be  determined ;  it  is  this,  whether  the  re- 
lators, being  merely  private  citizens,  are  proper  parties  to  this  pro- 
ceeding. In  State  ex  rel.  v.  Hoblitzelle,  85  Mo.  620,  it  was  ruled 
tliat  the  relator  being  a  contestant  for  an  office,  had  a  right  to  have 
an  inspection  of  the  poll-books  relating  to  his  election.  But  in  the 
minority  opinion  it  was  declared  that,  where  a  public  right  is  in- 
volved, and  the  object  is  to  enforce  a  public  duty,  the  people  are  re- 
garded as  the  real  party,  and  in  such  case  the  relator  need  not  show 
any  legal  or  special  interest  in  the  result,  the  fact  that  he  is  a  citi- 
zen, and,  as  such,  interested  in  the  execution  of  the  laws  is  the  ses- 
ame which  unlocks  the  gates  of  mandatory  authority  whenever  an 
officer  whose  duties  are  merely  ministerial,  refuses  to  peiiorm  his 
office  and  thereby  causes  detriment  to  the  public  interest.  In  the  sub- 
sequent case  of  State  ex  rel.  v.  Railroad,  86  Mo.  13,  the  position  of 
the  minority  was  fully  endorsed,  some  of  the  same  authorities  being 
cited  in  its  support.  The  great  weight  of  judicial  decision  supports 
this  view.  This  point  must,  therefore,  be  ruled  in  favor  of  the  re- 
lators.    *     *     * 


STATE  ex  rel.  TAYLOR  et  al.  v.  MOUNT  et  al. 

1898.     Supreme  Court  of  Indlvna.     151  Ind.  679,  51  N.  E.  417. 

Howard,  J.  This  was  an  action  brought  by  the  relators,  in  the 
name  of  the  state,  for  a  writ  of  mandamus  to  require  the  appellees. 
who  constitute  the  state  board  of  election  commissioners,  to  place 
upon  the  official  ballot  to  be  voted  at  the  general  election  to  be  held 
in  November,  i8f)8,  the  names  of  the  relators  as  candidates  for 
judges  of  the  appellate  court.  In  the  complaint  and  alternative  writ 
issued  thereunder  it  is  shown  that  the  relators  arc  each  eligible  to 
the  office  of  appellate  judge,  that  each  was  duly  nominated  thereto, 
and  said  nomination  properly  certified  to  the  said  board  of  election 
commissioners,  but  that  said  board  refused  to  ]>lacc  the  names  of 
relators  upon  the  official  ballot,  claiming  that  there  was  no  such  offi- 
cers fo  be  elected  at  said  election.  To  the  complaint  and  alternative 
writ  the  appellees  demurred  for  want  of  sufficient  facts,  and  this 
dcmnrrrr  was  sustained  by  the  court.  Judgment  was  thereupon  ren- 
dered flenying  the  pfremptorv  writ,  and   for  costs  against  the  re- 

1r.ff.ro 


§    6  THE    PARTIES.  221 

As  preliminary  to  a  consideration  of  the  case  upon  its  merits,  the 
appellees  contend  that  the  complaint  is  defective,  for  the  reason  that 
it  discloses  a  joint  action  by  the  relators,  whereas  they  have  no 
joint  or  common  interest  in  the  result.  There  is  no  doubt  that  each 
cf  the  relators  is  separately  interested  in  the  outcome  of  the  action, 
inasmuch  as  each  seeks  election  for  himself  to  the  office  of  jvidge  of 
the  appellate  court.  We  think,  however,  that  they  have  also  a  com- 
mon interest  in  the  decision  of  the  case.  They  are  all  complaining 
of  the  one  act  of  the  election  commissioners,  who  have  refused  to 
place  their  names  on  the  official  ballot,  claiming  that  there  is  no 
right  to  fill  the  office  of  appellate  judge  at  the  ensuing  general  elec- 
tion. That  is  the  one  actual,  indivisible  issue  brought  before  the 
court,  and  each  of  the  relators  is  equally  interested  in  the  decision 
of  that  issue.  The, separate  interests  of  the  relators,  which  follow 
and  depend  upon  the  determination  of  this  issue,  are  merely  inci- 
dental, and  are  not  before  the  court  for  any  decision  whatever.  Is 
there  a  vacancy  in  the  office  of  appellate  judge,  to  be  filled  at  the 
ensuing  election,  and  should  the  election  cornmissioners  therefore 
place  the  names  of  the  relators  on  the  ballot  as  candidates  for  that 
office?  That  is  the  question  for  decision,  and  it  is  too  plain  for  ar- 
gument that  all  of  the  relators,  nominees  as  they  are  for  this  office, 
have  a  common  interest  in  the  decision  of  this  question.  They  ask 
only  that  the  court  answer  the  question  by  saying  "Yes"  or  "No", 
and  in  this  answer  they  all  have  a  common  interest.     *     *     * 

Proceedings  in  name  of  state. — Price  v.  Harned.  i  Iowa,  473;  Contra: 
State  V.  Faulkner,  20  Kan.  541;  Stoddard  v.  Benton,  6  Colo.  508;  Morris 
V.  Womble,  30  La.  Ann.  1312;  See  also  Northern  Pac.  R.  R.  Co.  v.  Wash- 
ington Territory,  142  U.  S.  492;  State  v.  Carey,  2  N.  D.  36:  Howard  v. 
City  of  Huron,  5  S.  D.  539;  Whitesides  v.  Stuart,  91  Tenn.  710. 

Interest  of  relator. — Linden  v.  AUameda  Co.   Supervisors.  45  Cal.  6;  Con 
tra:     Moses  v.   Kearney,  31    Ark.  261.     See  also  Union   Pac.   R.  R.  Co.  v. 
Hall,  91  U.  S.  343. 

Joinder  of  parties. — State  v.  Mayor,  43  La.  Ann.  92:  State  v.  Mclver, 
2   S.   Car.   25 ;    But  see   Wright   v.   Gallatin   Co.   Commissioners,  6   Mont.   29. 

Intervention  of  third  parties  is  usually  permitted. — State  v.  Pilsbury,  31 
La.  Ann.  i ;  Lord  v.  Bates,  48  S.  Car.  95 ;  First  National  Bank  v.  Lan- 
caster, 54  Neb.  467;  But  see  State  v.  Burkhardt,  59  Mo.  75. 


222  PRESCOTT  V.   GONSER,   AUDITOR.  §    6 

2.     Defendant. 

THE  PF.OPLE  EX  rel.  COMMISSIONERS  v.  THE  COMMON- 
COUNCIL  OF  THE  CITY  OF  NEW  YORK. 

i866.     New  York  Court  of  Appeals.     3  Keyes  (N.  Y.)  81. 

(Petition  for  a  mandamus  to  compel  the  common  council  to  en- 
act an  ordinance  for  the  creation  of  a  fund  for  building  a  public 
market  as  directed  by  statute.  Objected  that  common  council  owed 
no  duty  to  the  relators,  that  duty  to  create  said  fund  was  imposed 
upon  the  municipality.) 

Wright,  J. —  (Omitting  part  of  the  opinion.) 

2.  As  to  the  objection  that  the  common  council  owe  no  duty  to 
the  relator.  It  is  based  on  the  ground  that  the  statute,  in  language, 
imposes  the  duty  to  create  the  stock  upon  "the  mayor,  aldermen,  and 
commonalty  of  the  city  of  New  York",  that  is,  the  municipal  corpo- 
ration, and  not  upon  the  common  council.  This  objection  is  equally 
groundless,  with  that  which  has  been  considered.  The  rule  is  well 
established  that  the  writ  lies  to  the  person  or  the  body  whose  legal 
duty  it  is  to  perform  the  required  act ;  as  where  a  corporation  is  re- 
quired by  law  .to  do  a  particular  act,  the  mandamus  is  addressed  to 
that  organ  of  the  corporation  which  is  to  perform  it.  In  the  lan- 
guage of  some  of  the  cases,  the  writ  lies  against  the  body  upon  whom 
the  duty  of  "putting  the  necessary  machinery  in  motion"  is  imposed. 
The  common  council  is  the  only  organ  of  the  corporation  of  the  citv 
of  New  York,  which  can  create  the  stock  under  the  statute.  It 
must  be  done  by  an  ordinance,  and  that  can  only  be  enacted  by  the 
legislative  department,  viz.,  the  common  council. 

The  order  of  the  supreme  court  should  be  affirmed. 

.'Ml  the  judges  concurring. 

Order  affirmed. 


PRESCOTT  V.  C.ONSER,  AUDITOR. 
1872.     Supreme  Court  of  Iowa.     34  Iowa  175. 

(Mandamus  to  compel  auditor  to  affix  county  seal  to  certain  war- 
rants issued  by  his  predecessor  in  office.) 

Mn.i.ER,  J.  I.  The  first  and  second  grounds  of  demurrer  arc  to 
the  effect,  that  the  petitir)n  does  not  state  sufficient  facts  to  consti- 
tute a  cause  of  action  in  this,  that  it  is  not  alleged  that  the  defendant 
wns  clerk  nf  the  l)oard  of  supervisors  at  the  lime  (if  the  issuance  of 
the  warrants  set  out  in  the  petition,  or  that  llie  board  ever  directed 
this  defendant  to  senl  the  warrants. 


§    6  THE    PARTIES.  223 

The  position  contended  for  in  the  argument  is,  that  the  defendant 
is  not  in  law  authorized  or  required  to  affix  the  county  seal  to  war- 
rants issued  by  his  predecessor  in  office,  unless  specially  directed  to 
do  so  by  the  board  of  supervisors. 

In  this  position  we  do  not  concur. 

The  county,  whose  officer  the  defendant  is,  is  a  corporation  for 
political  purposes  (Rev.,  §  221),  and  as  such  is  clothed  with  the  at- 
tribute of  perpetual  succession,  as  long  as  the  corporation  shall  have 
an  existence.  It  is  the  same  person  in  law  today  as  when  the  war- 
rants were  issued ;  in  like  manner  as  the  great  "Father  of  Waters"  is 
still  the  same  river,  though  the  parts  which  compose  it  are  ever,  and 
will  continue  to  be,  while  its  majestic  stream  shall  pursue  its  course 
to  the  sea,  changing  every  instant  of  time.  See  i  Blackstone  Comm., 
marg.  p.  468 ;  Angell  &  Ames  on  Corp.,  §  8.  So  a  corporation,  which 
is  composed  of  its  numerous  members,  and  is,  and  can  be,  repre- 
sented only  by  its  officers  and  agents,  who  are  continually  changing, 
is,  during  its  entire  existence,  but  one  person  in  law.  Id.  And 
where  the  action,  as  in  this  case,  is  brought  against  the  officer  of  the 
corporation,  upon  whom  the  law  devolves  a  specific  duty,  which,  it 
is  alleged,  he  has  omitted  and  refuses  to  perform,  the  same  doctrine 
of  immortality,  so  to  speak,  is  to  be  applied.  The  action  is  brought 
against  the  officer  as  such,  and  not  against  the  person ;  for  it  is  only 
in  his  official  capacity  that  he  can  perform  the  duty ;  and  the  act 
sought  to  be  enforced  is  to  be  done  By  the  officer  who  at  the  time 
sustains  that  relation.  If,  therefore,  a  duty  which  is  specially  en- 
joined upon  an  officer  is  neglected  or  omitted  by  him,  his  successors 
may  be  required  to  perform  it,  if  it  can  still  be  done.  United  States 
ex  rel.  V.  Commissioners  of  Dubuque  County,  Morris  (Iowa),  marg. 

•r\       O  T  ^         ^         ^ 


GAAL  V.  TOWNSEND  et  al. 

1890.     Supreme  Court  of  Texas.     77  Tex.  464,  14  S.  W.  365. 

Gaines,  J.  At  the  general  election  held  in  November,  1888,  the 
appellant  was  elected  one  of  the  commissioners  of  El  Paso  county, 
and,  having  duly  qualified  as  such,  entered  upon  the  duties  of  his 
office.  In  April,  1889,  he  also  accepted  the  office  of  Mayor  of  the 
town  of  Ysleta.  Appellee  Townsend  was  at  the  time  the  county 
judge  of  the  county,  and  treating  appellant's  office  of  commissioner 
as  having  been  vacated  by  the  acceptance  of  the  office  of  Mayor  of 
Ysleta,  proceeded  to  appoint  his  co-appellate  Schutz  to  fill  the  va- 
cancy. Schutz  was  thereupon  inducted  into  the  .office.  This  action 
was  brought  against  appellant  by  the  appellees  in  order  to  procure  a 
writ  of  mandamus  to  compel  Townsend,  as  county  judge,  to  permit 


224  GAAL  V.  TOWN  SEND  ET  AL.  §    6 

the  appellant  to  perform  his  duties  as  county  commissioner  of  El 
Paso  county.  The  petition,  among  other  things,  alleged  the  facts 
above  stated,  but  did  not  make  the  other  members  of  the  commis- 
sioners' court  parties  to  the  suit.  There  was  a  demurrer  to  the  peti- 
tion for  the  want  of  proper  parties,  which  the  court  sustained.  All 
other  demurrers  were  overruled.  The  plaintiff  having  declined  to 
amend,  his  suit  was  dismissed. 

We  are  of  the  opinion  that  the  court  did  not  err  in  its  ruling. 
We  think  it  is  a  general  rule  that,  when  the  performance  of  a  duty 
is  sought,  to  be  compelled  by  the  writ  of  mandamus,  all  persons 
charged  with  the  performance  of  that  duty  must  be  made  parties 
defendant  in  the  writ.  The  duty  here  sought  to  be  enforced  is  to 
permit  the  appellant  to  sit  and  act  as  a  member  of  the  commissioners' 
court.  It  is  one  which  is  incumbent  upon  every  member  of  that 
court,  and  can  be  exercised  only  through  the  will  of  a  majority  of 
their  body.  How,  then,  can  the  performance  of  this  duty  be  com- 
pelled by  a  suit  against  one  alone?  The  other  members  of  the  court, 
not  being  parties  to  the  writ,  could  not  be  affected  by  any  judgment 
that  might  be  rendered,  and  could  not  be  held  in  contempt  for  re- 
fusing to  admit  the  plaintiff  to  act  as  a  member,  although  this  court 
should  in  this  suit  declare  him  entitled  to  the  office,  and  command 
the  defendant  Townsend  to  admit  him  as  such.  It  is  clear  that  a 
mandamus  should  not  issue  to  compel  the  county  judge  to  do  an  act 
^^■hich  could  only  be  performed  with  the  consent  of  others.  The 
mere  fact  that  the  act  of  the  county  judge  in  treating  appellant's  of- 
fice as  vacant  and  in  appointing  his  successor  may  have  led  to  the 
action  of  the  commissioners'  court  in  excluding  the  appellant  from 
the  duties  of  his  office  can  make  no  difference.  In  a  proceeding  by 
mandamus  to  compel  a  body  of  persons  to  perform  an  act,  all  whose 
fluty  and  privilege  it  may  be  to  participate  in  the  performance  of 
that  act  must  be  made  parties  defendant. 

In  Lyon  v.  Rice,  41  Conn.,  245,  it  was  the  duty  of  three  selectmen 
of  the  town  to  call  a  town  meeting  upon  the  application  of  20  free- 
holders. A  proper  application  was  presented,  and  two  of  the  select- 
men refused  to  join  the  third  in  calling  the  meeting.  In  an  a]5plica- 
tion  for  a  mandamus  it  was  held  that  the  selectman  who  was  willing 
If  call  the  meeting  was  a  necessary  party.  In  view  of  the  fact  that 
the  disposition  of  the  case  in  the  court  below  and  in  this  court  does 
not  preclude  the  appellant  from  bringing  another  suit,  we  deem  it 
l)ropcr  to  express  an  opinion  upon  another  question  discussed  in  the 
brief.  Whether  ai)pellant  vacated  his  office  or  not  by  accepting  the 
office  of  mayor  of  Ysleta  dei)eiids  ujion  the  j^roper  construction  of 
section  40  of  article  16  of  tlic  ijrcscnt  constitution.  That  section  is 
as  follftws:  "\f)  person  shall  hold  or  exercise  at  the  same  time  more 
than  f>nr  civil  office  of  emolument,  excc])!  the  justice  of  the  peace, 
county  roinniissifiiu-r,  nr)l,-irv   pii1)1i(\   and    ixistniiastcr,   imless  other- 


§    6  THE   PARTIES.  225 

wise  specially  provided."  Does  this  mean  that  an  incumbent  can 
hold  either  of  the  offices  named,  and  at  the  same  time  any  other  of- 
fice, and  that  he  can  hold  only  two  offices  when  both  are  among  those 
specially  designated  ?  We  think  the  former  is  the  proper  construc- 
tion. The  language  is  copied  mainly  from  section  26  of  article  7  of 
the  constitutions  of  1845,  of  1861,  and  of  1866,  which  is  the  same  in 
each  of  those  instruments,  and  reads  as  follows:  "No  person  shall 
hold  or  exercise  at  the  same  time  more  than  one  civil  office  of  emolu- 
ment, except  that  of  justice  of  the  peace."  It  is  clear  that  under  this 
section  any  justice  of  the  peace  might  hold  another  office.  Powell  v. 
Wilson,  16  Tex.  59.  The  office  of  justice  of  the  peace  was  made  an 
exception  to  the  general  rule,  and  the  inference  from  the  use  of  the 
same  language  in  the  present  constitution,  with  the  mere  addition 
of  other  offices,  is  strong  that  it  was  not  meant  in  any  manner  to 
change  the  general  rule,  but  merely  to  make  additional  exceptions. 
The  other  construction  would  materially  mod-.'y  the  general  effect  of 
the  provision.  It  would  prevent  even  a  justice  of  the  peace  from 
holding  any  other  office  except  one  of  those  specially  named,  and 
would  be  a  radical  departure  from  the  provisions  of  all  previous  con- 
stitutions on  the  same  subject.  Const.  1869,  art.  3,  §  30.  If  the 
language  of  the  provision  in  question  had  been  "except  those  of  jus- 
tice of  the  peace",  etc.,  there  may  have  been  more  doubt  about 
the  construction  ;  but  the  words  are  "except  that",  etc.,  and  they  in- 
dicate that  it  was  intended  that  a  person  might  lawfully  hold  any 
office,  and  in  addition  either  of  the  offices  enumerated.  The  use  of 
the  word  "those"  would  have  suggested  the  construction  that  an  in- 
cumbent could  only  lawfully  hold  two  offices  at  the  same  time,  when 
both  were  offices  specially  named  in  the  section.  If  the  allegations 
of  the  petition  are  true,  we  are  clearly  of  the  opinion  that  the  appel- 
lant did  not  vacate  his  office  of  county  commissioner  by  accepting 
that  of  mayor.  Such  we  understand  to  have  been  the  ruling  of  the 
court  below.  But,  because  the  appellant  did  not  make  all  members 
of  the  commissioners'  court  parties  to  the  suit,  the  judgment  is  af- 
firmed. 

Municipal  corporations. — Mayor  v.  Lord.  9  Wall.  (U.  S.)  409;  Savage 
V.  Sterberg,  19  Wash.  679:  Wren  v.  Indianapolis,  96  Ind.  206;  See  also 
Williams   v.   City  of   New   Haven,  68  Conn.   263. 

To  successor  in  office. — State  v.  Canfield,  40  Fla.  36;  Norwalk,  etc., 
Light  Co.  V.  Common  Council,  etc.,  71  Conn.  381 ;  See  also  Mason  v.  School 
District,   20  Vt.  487. 

Joinder  of  parties  respondent. — State  v.  Cavanac,  30  La.  Ann.  237;  Hooper 
V.  Farmen,  85  Md.  587;  State  v.  Board,  7  Wyo.  478:  Littlefield  v.  Newell. 
8s  Me.  246;  State  v.  Brown,  19  Wash.  383;  And  see  People  v.  Wendell, 
lb  N.  Y.  S.  587;  Cross  v.  West  Va.  &  R.  Co..  35  W.  Va.  174;  State  v. 
Smith,  7  S.  Car.  275;  Labette  Co.  Commissioners  v.  U.  S.,  112  U.  S.  217. 


226  STATUTE   OF   ANNE.  ^    7 

Section  7. — Pleading,  Practice  and  Procedure. 

I.     Statute  of  Anne. 

Prior  to  the  enactment  of  this  statute  (1710),  the  strictest  rules 
of  common  law  pleading  applied  to  the  proceedings  in  Mandamus. 
The  determination  of  the  cause  was  based  entirely  upon  the  return 
to  the  alternative  writ  and  this  return  was  incontrovertible.  Until 
the  enactment  of  the  statute  the  relator  had  no  remedy  as  against 
the  defendant  for  a  false  return  save  in  an  action  on  the  case.  Since 
the  statute,  the  pleadings  in  mandamus  have  been  made  to  corre- 
spond very  closely  to  the  pleadings  in  ordinary  actions.  The  relator 
having  by  petition  or  otherwise  presented  his  right  of  action,  the 
alternative  writ  issues,  (or  sometimes  in  its  stead  a  rule  to  show 
cause),  and  this  operates  to  all  intents  as  the  declaration  in  the  cause. 
The  first  pleading  in  mandamus  is  properly  the  alternative  writ. 

The  essential  provisions  of  the  Statute  of  Anne  have  been  recog- 
nized either  by  legislative  enactment  or  judicial  interpretation  in 
practically  all  the  States.  Where  the  Code  has  been  adopted  it  has. 
of  course,  been  found  necessary  to  make  important  modifications  ii.i 
order  to  harmonize  the  pleadings  in  Mandamus  with  those  in  other 
actions  at  law.  In  this  respect  the  pleading  and  practice  acts  of  the 
several  states  must  be  consulted. 

STATUTE  OF  ANNE. 

9  Anne.  Ch.   20.    (1710.) 

I.  Whereas  divers  persons  have  of  late  illegally  intruded  themselves  into, 
and  have  taken  upon  themselves  to  execute,  the  otitices  of  ma3'Or,  bailiffs, 
portreeves,  and  other  offices,  within  cities,  towns  corporate,  boroughs  and 
places  within  that  part  of  Great  Britain  called  England  and  Wales ;  and 
where  such  offices  were  annual  offices,  it  hath  been  found  very  difficult, 
if  not  impracticable,  by  the  laws  now  in  being,  to  bring  to  a  trial  and  de- 
termination the  right  of  such  persons  to  the  said  offices  witliin  the  com- 
pass of  the  year ;  and  where  such  offices  were  not  annual  offices  it  hath 
i)een  found  difficult  to  try  and  determine  the  right  of  such  persons  to  such 
offices,  l)efore  they  have  done  divers  acts  in  their  said  offices  prejudicial 
to  the  peace,  order,  and  good  government  within  such  cities,  towns  cor- 
porate, boroughs  and  places,  wherein  they  have  respectively  acted ;  and 
whereas  divers  persons,  who  have  a  right  to  such  offices,  towns  corporate, 
boroughs  and  places,  have  either  been  illegally  turned  out  of  the  same, 
or  have  been  refused  to  be  admitted  thereto,  having  in  many  of  the  said 
cases  no  other  remedy  to  procure  themselves  to  be  respectively  admitted 
or  restored  to  their  said  offices  or  franchises  of  being  burgesses  or  free- 
men than  by  writs  of  mandamus,  the  proceedings  on  whicli  are  very  dilatory 
and  expensive,  whereby  great  mischiefs  have  already  ensued,  and  more  are 
lik<rly  to  ensue,  if  nr)t  timely  prevented;  for  remedy  whereof,  be  it  enacted 
by  the  rinecn's  most  excellent  majesty,  liy  and  with  the  advice  and  con- 
sent of  the  lords  spiritual  and  tenii)oral,  and  commons,  in  this  present 
parliament   assembled,    and   by    the   authority   of   the    same,    that    from    and 


§    7  PLEADING,  PRACTICE  AND  J'ROCEDURE.  227 

after  the  first  day  of  the  Trinity  Term,  in  the  year  of  our  Lord  one  thou- 
sand seven  hundred  and  eleven,  where  any  writ  of  mandamus  shall  issue 
out  of  the  court  of  queen's  bench,  tlie  courts  of  sessions  of  counties  pala- 
tine, or  out  of  any  of  the  courts  of  grand  sessions  in  Wales,  in  any  of  the 
cases  aforesaid,  such  person  or  persons,  who  by  the  laws  of  this  realm 
are  required  to  make  a  return  to  such  writ  of  mandamus,  shall  make  his 
or  their  return  to  the  first  writ  of  mandamus. 

II.  And  be  it  further  enacted  by  the  authority  aforesaid,  that  from  and 
after  the  said  first  day  of  Trinity  term,  as  often  as  in  any  of  the  cases  afore- 
said any  writ  of  mandamus  shall  issue  out  of  any  of  said  courts,  and  a 
return  shall  be  made  thereunto,  it  shall  and  may  be  lawful  to  and  for  the 
person  or  persons  suing  or  prosecuting  such  writ  of  mandamus,  to  plead 
to  or  traverse  all  or  any  of  the  material  facts  contained  within  the  said 
return ;  to  which  the  person  or  persons  making  such  return  shall  reply, 
take  issue  or  demur;  and  such  further  proceedings,  and  in  such  manner, 
shall  be  had  therein,  for  the  determination  thereof,  as  might  have  been 
had  if  the  person  or  persons  suing  such  writ  had  brought  his  or'  their 
action  on  the  case  for  a  false  return ;  and  if  any  issue  shall  be  joined  on 
such  proceedings,  the  person  or  persons  suing  such  writ  shall  and  may 
try  the  same  in  such  place  as  an  issue  joined  in  such  action  on  the  case 
should  or  might  have  been  tried ;  and  in  case  a  verdict  sliall  be  found 
for  the  person  or  persons  suing  such  writ,  or  judgment  given  for  him  or 
them  upon  a  demurrer,  or  by  nil  dicit,  or  for  want  of  a  replication  or 
other  pleading,  he  or  they  shall  recover  his  or  their,  damage  and  costs  in 
such  manner  as  he  or  they  might  have  done  in  such  action  on  the  case,  as 
aforesaid ;  such  costs  and  damages  to  be  levied  by  capias  ad  satisfaciendum, 
iicri  facias,  or  elegit;  and  a  peremptory  writ  of  mandamus  shall  be  granted 
without  delay,  for  him  or  them  for  whom  judgment  shall  be  given,  as 
might  have  been,  if  such  return  had  been  adjudged  insufficient;  and  in  case 
judgment  shall  be  given  for  the  person  or  persons  making  such  return  to 
such  writ,  he  or  they  shall  recover  his  or  their  costs  of  suit  to  be  levied 
in    manner    aforesaid. 

III.  Provided  always,  that  if  any  damage  shall  be  recovered  by  virtue 
of  this  act  against  any  such  person  or  persons  making  such  return  to  such 
writ,  as  aforesaid,  he  or  they  shall  not  be  liable  to  be  sued  in  any  other 
action  or  suit  for  the  making  of  such  return ;  any  law,  usage  or  custom 
to    the    contrary   thereof   in   anywise    notwithstanding. 


2.     The  Petition. 

This  is  invariably  in  the  nature  of  an  ex  parte  appHcation  to  the 
court  and  the  general  essentials  of  good  pleading  are  required.  The 
petition  should  make  out  a  prima  facie  case ;  should  state  all  the 
facts  necessary  to  justify  the  relief  sought ;  should  set  forth  these 
facts  with  a  degree  of  ordinary  certainty,  and,  imder  circumstances, 
allege  facts  sufficient  to  prove  jurisdiction ;  should  allege  the  absence 
of  another  adequate  remedy ;  and  where  the  performance  of  the  duty 
sought  to  be  enforced  is  dependent  upon  conditions  precedent,  the 
Performance  of  such  obligations  should  be  specifically  alleged,  or  an 
adequate  excuse  for  non-performance  definitely  stated. 


228  ALTER XATIVE   WRIT  AND  RETURN.  §    7 

3.     The  Alternative  Writ. 

In  conformity  with  the  Statute  of  Anne,  the  alternative  writ  is 
looked  upon  in  most  states  as  the  first  formal  pleading  of  the  relator. 
Ihe  petition  and  affidavits  upon  which  the  writ  was  obtained  are 
technically  considered  no  part  of  the  record,  nor  can  they  be  used  to' 
support  or  supplement  the  allegations  in  the  alternative  writ. 

This  alternative  writ  must  contain,  specifically  stated,  all  the  aver- 
ments of  fact  upon  which  the  relator  bases  his  right  of  action,  thus 
enabling  the  respondent  to  have  information  sufficient  to  permit  him 
to  make  a  full  and  complete  answer  to  such  averments.  Originally 
the  highest  degree  of  technical  particularity  was  required  in  the  al- 
ternative writ  and  subsequent  pleadings,  but  under  the  modern  prac- 
tice a  "certainty  to  a  common  intent"  is  considered  sufficient  to  an- 
swer all  requirements.  This  does  not  mean,  however,  that  any  de- 
gree of  laxity  is  justifiable  in  this  (or  any  other)  pleading.  The  al- 
ternative writ  must  contain  every  material  fact  upon  which  the  re- 
lator bases  his  claim  for  relief,  and  these  facts  must  be  set  forth  dis- 
tinctly, unreservedly,  fully  and  clearly,  since  no  deficiency  in  the  al- 
legations contained  in  the  alternative  writ  can  be  supplied  by  matter 
appearing  in  the  petition  and  its  accompanying  affidavits  or  in  the 
return.    The  relator  must  stand  or  fall  with  his  alternative  writ. 

After  the  facts  have  been  stated  in  the  alternative  writ,  a  manda- 
tory clause  should  be  added  and  this  must  particularly  and  spe- 
cifically set  forth  the  duty  required  of  the  respondent,  asking  the 
court  for  an  order  compelling  him  to  perform  such  duty.  The  great- 
est care  should  be  exercised  in  framing  this  mandatory  clause  since 
the  final  or  peremptory  writ  must  strictly  conform  therewith  and  be 
enforced  in  its  terms  or  fail. 


4.     The  Return. 

The  return  of  the  respondent  to  the  alternative  writ  corresponds 
in  most  essentials  to  the  plea  or  answer  of  the  defendant  in  an  ordi- 
nary civil  action.  Originally  the  return  not  being  traversable,  the 
utmost  degree  of  certainty,  "certainty  to  a  certain  intent,"  was  re- 
quired of  the  respondent.  In  modern  practice  the  severity  of  this 
rule  has  1)ccn  greatly  relaxed.  The  return  nutst  either  show  obedi- 
ence \<)  the  mandatory  clause  of  the  alternative  writ,  or  cause  for  not 
obeying  same. 


§  7  PLEADING,  PRACTICE  AND  PROCEDURE.  229 

5.     Objections  to  the  sufficiency  of  the  alternative  writ. 

Owing-  to  the  summary  nature  of  the  proceeding  in  Mandamus  at 
common  law,  a  demurrer  to  the  alternative  writ  was  unknown.  The 
respondent,  however,  could  always  test  the  sufficiency  of  the  writ 
either  by  a  motion  to  quash  or  by  a  motion  to  discharge  the  rule  to 
show  cause ;  this  practically  answered  the  purpose  of  a  general  de- 
murrer. Under  the  modern  practice  acts  a  demurrer  is  usually  al- 
lowed and  res])ondent  now  may  either  demur  or  take  issue. 

Technically  the  respondent's  return  is  the  final  pleading,  but  there 
appears  no  reason  why,  in  a  proper  case,  relator  might  not  file  a 
"replication",  explaining  or  avoiding  facts  set  up  in  the  return. 


COMMERCIAL  BANK  OF  ALBANY  v.  CANAL  COMMIS- 
SIONERS OF  THE  STATE  OF  NEW  YORK. 

1832.    Court  for  the  Correction  of  Errors  of  New  York,     io 
Wend.  (N.  Y.)  26. 

The  following  opinion  was  delivered  by  the  chancellor. 

An  objection  was  raised  on  the  argument  of  this  cause,  to  the  affi- 
davits and  other  papers  of  the  relators  on  which  the  order  for  the 
mandamus  was  granted,  as  forming  no  part  of  the  record  in  the 
court  below.  On  the  suggestion  of  one  of  the  members  of  this  court, 
and  to  prevent  delay,  the  counsel  for  the  defendants  in  error  con- 
sented to  waive  the  objection  that  these  affidavits  were  not  in  fact 
incorporated  into  the  record,  reserving,  however,  the  right  to  insist 
that  they  could  not  legally  have  been  made  a  part  of  ihe  record,  and 
that  the  record  was  properly  made  up  without  incorporating  them 
therein.  On  a  careful  examination  of  this  question,  I  am  satisfied 
these  affidavits,  etc.,  formed  no  part  of  the  record,  and  could  not 
legally  have  been  taken  into  consideration  by  the  supreme  court  in 
deciding  this  demurrer  to  the  return  of  the  defendants  to  the  per- 
emptory mandamus.  We  must,  therefore,  lay  them  entirely  out  of 
the  question  here. 

Some  difficulty  has  occasionally  arisen  from  confounding  an  al- 
ternative mandamus  with  an  order  to  show  cause  in  the  nature  of  an 
alternative  mandamus.  Such  a  mistake  arose  in  the  case  of  the 
People  V.  The  Delaware  Common  Pleas,  2  Wend.  (N.  Y.)  255. 
The  modern  practice  is  not  to  award  a  mandamus  in  the  first  in- 
stance ;  but  to  grant  an  order  to  show  cause  why  a  mandamus  should 
not  issue.  In  such  cases  the  question  is  discussed  upon  the  original 
papers  on  which  the  order  was  obtained  and  upon  the  opposing  affi- 
davits.    If  there  is  no  dispute  about  the  facts,  and  neither  party 


230  COMMERCIAL   BANK   V.    CANAL    COM  KS   OF    .NEW    YORK.  §    7 

wishes  the  case  to  be  put  in  a  position  to  enable  him  to  review  the 
decision  upon  a  writ  of  error,  the  court  denies  the  appHcation,  or 
mav  award  a  peremptory  mandamus  in  the  first  instance ;  in  which 
case  no  formal  judgment  is  given,  and  no  record  is  made  up  in  the 
supreme  court.  A  writ  of  error  is  by  statute  given  upon  a  decision 
of  that  kind  in  the  particular  case  of  a  contest  between  the  state  and 
individuals  relative  to  water  privileges  on  the  canal,  i  Rev.  Stat. 
235,  §  97.  In  other  case,  however,  if  the  facts  on  which  the  claims 
of  the  relator  depends  are  in  dispute,  or  the  parties  wash  to  bring  the 
case  before  the  courts  of  dernier  ressort,  the  supreme  court  awards 
an  alternative  mandamus,  in  which  writ  the  relator  sets  forth,  his 
title,  or  the  facts  on  which  he  claims  the  right  to  the  relief  sought 
by  his  application,  and  the  defendant  is  required  to  do  the  particular 
act,  or  show  why  he  has  not  done  it.  If  the  writ  is  defective,  either 
in  form  or  substance,  the  defendant  may  move  to  quash  it.  The 
King  V.  The  Bishop  of  Oxford,  7  East  (K.  B.)  245 ;  The  People  v. 
The  Judges  of  Westchester,  4  Cow.  (N.  Y.)  y^-  If  the  writ  is  not 
quashed,  the  defendant  must  make  a  return  thereto,  unless  he  thinks 
proper  to  put  an  end  to  the  controversy  by  doing  the  act  required. 
If  he  makes  a  return  he  must  either  deny  the  facts  stated  in  the  writ 
on  which  the  claim  of  the  relator  is  founded,  or  he  must  state  other 
facts,  sufficient  in  law  to  defeat  the  relator's  claim.  Rex  v.  Corpora- 
tion of  Dublin,  Batt.  (K.  B.)  628.  In  the  case  of  the  King  v.  The 
Mayor  of  York,  5  T.  R.  f  K.  B.)  74,  Lord  Kenyon  and  Justice  Buller 
said  it  was  too  late  to  take  any  objection  to  the  writ,  after  a  return 
thereto.  But  in  this  they  were  clearly  wrong,  if  they  intended  to 
apply  their  remarks  to  defects  of  substance.  All  the  authorities,  both 
before  and  since  that  decision,  show  that  any  defect  in  substance  in 
the  writ,  as  a  want  of  sufficient  title  in  the  relator  to  the  relief  sought, 
may  be  taken  advantage  of  at  any  time  before  the  peremptory  man- 
flamus  is  awarded.  In  the  case  of  the  King  v.  The  City  of  Chester, 
TTolt  (K.  r>.)  438,  the  court  considered  the  return'  insufficient  and 
contradictory;  but  they  quashed  the  writ  because  that  was  bad  also. 
In  Rex  V.  College  of  Physicians,  5  Burr.  (K.  B.)  2740,  after  a  re- 
turn had  been  made  to  the  writ,  the  mandamus  was  quashed  because 
the  foundation  to  the  relator's  claim,  or  private  statute,  was  not 
sufficiently  set  forth  therein.  The  relators  in  that  case  afterwards 
applied  for  and  obtained  another  writ  in  which  the  foundation  of 
their  claim  was  stated  in  cxtcnso,  and  upon  a  return  of  this  last  writ 
the  case  was  finally  decided.  So  in  the  recent  case  of  the  King  v, 
Margate  Pier  Company,  3  Barn.  &  Aid.  (K.  B.)  221,  the  counsel 
for  the  relator  admitted  that  the  relator's  title  was  not  set  out  with 
sufficient  certainty  in  the  writ,  but  as  a  return  thereto  had  been  made, 
he  insisted  that  the  objection  came  too  late.  He  relied  also  upon  the 
nitthoritv  of  the  King  v.  Mayor  of  York,  to  sustain  that  position. 
V>\\\  Abbot.  Ch.  T..  riccidcd  it  was  not  too  late  to  take  an  objection  fo 


5  7  I'l.EAUING,  PRACTICE  AND  PROCEDURE.  23I 

the  writ;  that  if  the  material  facts  on  which  the  relator  founded  his 
claim  were  not  stated  in  the  writ  it  would  deprive  the  defendant  of 
the  power  of  traversing  them ;  for  the  defendants  were  only  to  an- 
swer what  was  alleged  in  the  writ. 

Previous  to  the  statute  of  9  Anne,  ch.  20,  for  rendering  proceed- 
ing on  writs  of  mandamus,  etc.,  more  effectual,  i  Evans'  statute,  176, 
the  defendant  was  holden.to  great  strictness  in  his  return  to  the  writ, 
as  the  relator  had  no  remedy  but  by  a  suit  for  a  false  return.  Such 
is  now  the  law  in  England  in  cases  not  coming  within  the  statute. 
Our  statute  is  general,  and  gives  the  same  remedy,  by  traverse,  plea 
or  demurrer  to  the  return  to  an  alternative  mandamus,  in  all  cases. 
After  the  passing  of  the  statute  of  Anne,  the  proceedings  in  cases 
coming  within  its  provisions  assumed  the  form  of  ordinary  suits. 
The  mandamus  set  out  the  grounds  of  the  claim  of  the  relator  to  the 
relief  sought,  and  answered  to  the  declaration  in  other  suits.  To 
this  the  defendant  made  a  return,  either  traversing  the  facts  there 
stated,  or  admitting  those  facts  and  setting  up  new  matter  in  avoid- 
ance. To  the  return  the  relator  either  demurred,  took  issue  thereon, 
or  pleaded  other  matters  in  answer,  as  in  ordinary  suits.  3  Black- 
stone  Comm.  265. 

The  return  to  the  alternative  mandamus  in  this  case  is  objection- 
able, in  form  at  least,  in  not  charging  facts  positively  and  distinctly ; 
in  this  respect  it  is  very  informal  and  defective ;  instead  of  stating 
facts,  the  return  merely  sets  out  or  refers  to  matters  of  evidence, 
from  which  those  facts  are  inferred.  This  is  contrary  to  every  prin- 
ciple of  good  pleading  and  if  the  writ  in  this  case  had  shown  a  valid 
right  in  the  relators,  I  should  think  the  demurrer  to  the  return  well 
taken.  But  here  another  well  settled  principle  of  pleading  applies  to 
the  case  tmder  consideration.  Although  the  particular  pleading  de- 
murred to  is  bad,  either  in  form  or  substance,  yet  if  some  previous 
pleading  is  defective  in  substance,  judgment  must  be  given  against 
the  party  who  has  committed  the  first  fault.  Upon  referring  to  the 
mandamus,  as  set  out  in  the  record,  it  shows  no  right  in  the  relators 
to  the  money  which  the  writ  commands  these  defendants  to  pay- 
Perhaps  it  was  sufficient  in  this  case,  in  the  writ,  to  refer  to  the  order 
and  assignment  annexed  to  the  affidavits  on  file,  to  ascertain  what 
the  defendants  were  required  to  pay ;  but  the  fact  showing  why  they 
ought  to  pay  that  sum,  should  appear  in  the  writ,  clearly  and  dis- 
tinctlv ;  so  that  the  facts  there  alleged  might  be  admitted  or  traversed. 

6  Mod.  Rep.  (K.  B.)  310;  7  East  (K.  B.)  345;  5  Burr.  (K;  B.) 
2742.  It  may  sometimes  be  allowable  to  refer  to  extrinsic  facts  to 
ascertain  precisely  what  is  claimed  in  a  suit ;  but  the  reasons  why  it 
is  claimed  must  always  appear  upon  the  record,  to  enable  the  court 
to  judge  of  their  validity.  As  the  mandamus  was  defective  in  sub- 
stance, I  am  satisfied  that  judgment  was  properly  given  to  the  de- 
fendants on  demurrer  to  the  return. 


232      COMMON' WEALTH    EX    REL.    ARMSTRONG  V.    COMMISSIONERS.       ^    / 

The  defendants  in  error  have,  however,  expressed  a  wilHngness 
to  waive  all  questions  of  mere  form,  and  to  have  this  case  decided  on 
its  merits,  provided  the}'  are  not  to  be  met  with  formal  objections  on 
the  other  side ;  I  shall  therefore  proceed  to  consider  the  case  upon 
its  merits,  on  the  facts  as  they  appear  from  the  affidavits  and  papers 
upon  both  sides,  and  as  upon  an  order  to  show  cause  why  a  man- 
damus should  not  be  granted.  It  was  in  this  manner,  as  I  understand 
from  the  opinion  annexed  to  the  case,  that  the  cause  was  examined 
and  decided  in  the  supreme  court. 

The  chancellor  then  proceeded  to  examine  the  case  on  its  merits, 
and  came  to  the  conclusion  that  the  judgment  of  the  supreme  court 
ought  to  be  affirmed  ;  and  the  court,  being  unanimously  of  that  opin- 
ion, it  v,-as  accordingly  affirmed. 


COMMONWEALTH  ex  rel.  ARMSTRONG  v.  COMMISSION- 
ERS OF  ALLEGHENY  CO. 

i860.     Supreme  Court  of  Pennsylvania.     37  Pa.  St.  277. 

Thompson,  J.  Mandamus  is  a  high  prerogative  and  remedial 
writ,  the  proper  functions  of  which  are  the  enforcement  of  duties 
to  the  public,  by  officers  and  others,  who  either  neglect  or  refuse  to 
perform  them.  It  follows,  therefore,  that  those  to  whom  it  may  be 
appropriately  directed,  owe  some  duty  to  the  public,  and  are  under 
obligation  to  perform  it ;  and  for  the  enforcement  of  which  there  is 
no  other  specific  legal  remedy. 

In  practice,  the  party  seeking  such  a  reniccly  i:)resents  to  the  court 
a  prima  facie  case,  entitling  him  to  the  writ.  l)y  way  of  suggestion. 
Tliis  being  in  proper  form  and  sufficient  in  substance,  an  alternative 
mandamus  may  be  awarded  upon  it.  reciting  the  complaint  of  the  re- 
lator and  his  demand  for  redress,  and  commanding  the  party  to 
whom  it  is  directed,  either  to  obey  it  or  return  his  reasons  for  not  so 
doing.  This  alternative  is  what  gives  the  denomination  of  "alterna- 
tive mandamus"  to  the  first  writ. 

The  establishment  of  a  (lu(\-  and  the  ol)Iigati(^n  to  perform  it.  is 
upon  the  jjlaintiff  to  show,  and  this  is  considered  as  done  prima  facie, 
when  the  court  awards  the  writ.  The  res]x)ndent,  upon  service  of  it, 
is  bound  cither  to  obey,  or  show  that  the  plaintifif  has  no  right  to 
demand  olx-dicnce,  or  that  no  duty  exists  which,  he  can  be  compelled 
to  perform.  Whenever  this  is  not  accomplislied  by  a  demurrer,  or  by 
a  general  traverse  of  the  facts  set  forth  in  the  writ,  it  is  generally 
Hone  by  matters  set  forth  in  the  return  by  way  of  confession  and 
avojrlance.  In  which  case  the  facts  relied  on  to  justify  the  refusal 
to  obey  the  mandate  of  the  writ,  must  be  clearly  and  specifically  set 


§    7  PLEADING,  PRACTICE  AND  PROCEDURE.  233 

forth  with  sufficient  certainty,  and  not  argumentatively,  inferentially, 
or  evasively,  so  that  the  court  may  see  at  once  that  such  facts,  if  es- 
tabhshed  or  admitted,  are  sufficient  as  the  akernative  for  obedience 
to  the  writ.  Tap.  on  Man.  347 ;  et  passim.  Commonwealth  v.  Com- 
missioners of  Allegheny  County,  8  Cas.  (Pa.  St.)  218;  Common- 
wealth v.  City  of  Pittsburgh,  10  Cas.  (Pa.  St.)  496. 

In  the  case  at  hand,  the  relator  sets  forth  a  title  to  a  bond  or  cer- 
tificate of  loan  of  $1,000,  claimed  to  have  been  issued  by  the  com- 
missioners of  the  county  of  Allegheny,  in  the  name  of  the  county, 
and  avers  it  to  be  one  of  a  number  issued  by  that  county  in  payment 
of  subscriptions  .0  stock  in  the  Pittsburgh  and  Connellsville  Rail- 
road Company,  which,  by  certain  acts  of  Assembly,  therein  referred 
to,  it  is  also  alleged  they  w^ere  authorized  to  make  and  pay  for  in  the 
bonds  and  certificates  referred  to,  and  that  the  respondents  were 
bound  to  make  provision  for  the  payment  of  the  interest  on  the  same, 
:emi-annually,  until  the  principal  should  fall  due,  with  a  further 
averment  of  neglect  and  refusal  so  to  do.  This  is  in  substance  the 
relator's  case ;  and  if  the  respondent  cannot  in  law  successfully  gain- 
say his  title  to  the  redress  demanded,  or  in  some  other  legal  way  de- 
feat the  remedy  invoked,  a  peremptory  mandamus  must  issue.  And 
as  that  process  is  not  in  this  instance  adapted  to,  or  intended  to  effect 
any  purpose  but  that  of  enforcing  the  performance  of  the  alleged 
duty  of  making  provision  for  the  payment  of  the  interest  on  the 
bonds  so  issued,  and  as  that  duty  is  not  divisible,  it  can  only  be  satis- 
fied by  performance  to  the  extent  of  the  duty  imposed,  which  will 
be  by  making  provision  for  the  payment  of  interest  on  the  whole 
amount  of  the  bonds  mentioned  in  the  writ,  of  which  the  relator  is 
the  holder  of  one,  and  v/hich,  so  far  as  to  call  for  the  duty  claimed, 
may  stand  as  the  representative  of  all  the  rest.  The  duty  and  obliga- 
tion to  perform  it,  if  established  as  to  the  bond  of  the  relator,  estab- 
lishes at  least  a  prima  facie  case  as  to  all  the  others  issued  at  the 
same  time,  under  the  same  authority,  and  for  the  same  purposes, 
and  prima  facie  entitled  to  the  same  meed  of  justice.  The  right  of 
individual  holders  to  demand  any  portion  of  the  money  claimed  to  be 
raised,  is  not  determined  in  this  proceeding.  The  only  point  is,  the 
question  of  obligation  and  duty  to  provide  for  the  payment  of  inter- 
est as  enjoined  by  law. 

The  respondents  in  their  turn  admit  the  incorporation  of  the  Pitts- 
burgh and  Connellsville  Railroad  Company,  the  existence  of  an  Act 
of  Assembly  authorizing  the  county  of  Allegheny  to  subscribe  to  the 
stock  thereof,  the  actual  subscription  by  the  commissioners  to  the 
extent  of  $750,000  (fifteen  thousand  shares),  and  the  issuance  of 
bonds  or  certificates  of  loan  to  the  company  in  payment  of  subscrip- 
tion, but  rely  on  certain  defenses,  to  be  noticed  hereafter,  to  relieve 
them  from  obedience  to  the  writ.  This  then  is  what  may  be  called 
pleading  by  way  of  confession  and  avoidance ;  and,  so  far  as  this  is 


234      COMMONWEALTH    EX    REL.    ARMSTRONG  V.    COMMISSIONERS.       §    7 

the  nature  of  the  return  they  place  themselves  in  this  position ;  that 
facts  thus  pleaded,  being  the  presentation  of  a  new  case  by  way  of 
defense,  must  be  averred  with  certainty,  and  positively,  not  argu- 
mentativel},  inferentially,  or  evasively.  We  will  now  test  this  re- 
turn by  the  requirements  of  the  law  in  mandamus  cases. 

The  return  in  one  sense  is  single,  although  it  contains  many  alle- 
gations, to  which  the  relator  demurred  generally.  Everything  there- 
after that  is  well  and  sufficiently  pleaded  or  returned,  is  admitted  by 
the  demurrer.  Inferences  from  facts — arguments  and  conclusions 
are  not. 

With  these  views  deemed  necessary  to  a  proper  outset  in  the  in- 
vestigation, we  shall  notice  such  portions  of  the  return  as  have  not 
been  passed  upon  in  the  cases  cited  (supra) ;  and  for  convenience  I 
may  perhaps  denominate  the  separate  averments  of  the  return  as 
pleas  which,  however,  they  are  only  by  analogy. 

The  first  matter  interposed  by  the  respondents  in  their  return  is 
neither  by  way  of  confession  and  avoidance,  nor  by  general  traverse, 
but  may  be  regarded  as  a  plea  to  the  jurisdiction  of  the  court.  We 
decided  in  Thomas's  case,  and  again  in  Hamilton  v.  Council,  that 
our  authority  to  issue  such  process  as  this  was  not  circumscribed  by 
the  districts  assigned  to  the  courts  by  the  legislature,  but  that  it  ex- 
tended throughout  the  state,  without  regard  to  the  district  in  which 
the  court  might  be  in  session  at  the  moment  of  awarding  it.  The 
constitution  having  imposed  no  other  than  the  territorial  limits  of 
the  state  as  the  limit  of  jurisdiction  of  the  court,  although  the  legis- 
lature might  well  appoint  districts  in  which  to  hold  terms,  for  the 
convenience  of  parties,  it  is  hardly  necessary  to  say,  that  they  pos- 
sessed no  power  to  impair  the  efficiency  of  the  court  by  limitations 
not  imposed  by  the  constitution.  But  I  dismiss  this  portion  of  the 
return  as  insufficient,  as  is  shown  in  the  decision  referred  to,  and 
Middleton's  case  decided  at  this  term. 

The  next  matter  contained  in  the  return  is  that  the  railroad  com- 
pany did  not,  within  five  years  after  the  passage  of  the  Act  of  1843, 
which  extended  the  original  period  for  the  commencement  of  the 
work,  in  good  faith  commence  the  construction  of  the  road;  but  by 
a  vote  of  the  stockholders,  taken  under  the  provisions  of  an  Act  of 
Assembly  on  the  15th  of  Marcli,  1847,  abandoned  the  project  of 
building  the  road,  and  directed  the  surrender  of  the  charter,  and  that 
installments  paid  be  refunded  to  such  as  might  desire  the  same. 

All  this  portion  of  the  return,  the  substance  of  which  is  given,  is 
obnoxious  to  the  objection  of  want  of  certainty  in  pleading  in  man- 
damus proceedings.  The  facts  to  show  want  of  "good  faith  in"  com- 
mencing the  work,  should  have  been  set  out.  Instead  of  that  we 
have  only  the  respondent's  inference  from  facts  not  exhibited,  that 
there  was  bad  faith  in  the  particular  alleged.  This  was  an  inference 
lor  the  court  to  flraw,  from  the  facts;  thcv  cannot  draw  it  from  an 


§    7  PLEADING,  PRACTICE  AND  PKOCEDUKE.  235 

inference  of  the  party ;  and  there  is  nothing  else  from  which  to  draw 
it ;  for  the  facts  constituting  want  of  good  faith,  if  there  be  such, 
are  not  averred.  As  therefore,  it  was  not  well  pleaded,  it  is  not  ad- 
mitted by  the  demurrer.    Thomas's  case,  8  Cas.  (Pa.  St.)  218. 

So  with  the  other  allegations  in  this  portion  of  the  return.  Did  the 
vote  alluded  to  carry  a  resolution  to  abandon  the  work,  or  is  that 
the  inference  of  the  respondents  only  ?  Was  there  a  direction  to  sur- 
render the  charter  only,  or  was  it  surrendered  in  fact  ?  Did  the  stock- 
holders all  or  any  of  them,  receive  their  installments  paid  in?  "Cer- 
tainty, to  a  certain  intent  in  general",  is  all  that  is  required;  the 
meaning  of  which  is  that  the  matter  alleged  must  be  certain  without 
reference  to  supposed  facts  which  do  not  appear.  Tap.  on  Man.  354 ; 
Thomas  v.  Commissioners,  supra.  But  that  requirement  is  wanting 
here. 

The  conclusions  may  be  just  inferences  or  not,  as  a  matter  of  be- 
lief, in  proportion  to  our  faith  in  the  accuracy  of  those  who  make 
them;  but  these  are  not  facts  from  which  a  court  can  judicially  de- 
termine them  to  be  so  of  themselves,  and  therefore  are  not  sufficient 
as  a  return. 

*  *  *  The  further  averment  and  charge  contained  in  this  di- 
vision of  the  return,  that  the  commissioners  exercised  the  power  to 
subscribe  under  the  secret  influence  and  representations  of  the  offi- 
cers of  the  company,  are  insufficient  for  want  of  certainty.  As  this 
is  by  way  of  avoidance  of  the  acts  of  the  commissioners,  certainty 
is  necessary  to  give  effect  to  it.  Whether  the  charge  is  predicated  of 
opinions,  belief,  or  of  facts,  is  not  shown,  and  is  therefore  not  suffi- 
cient. 

*  *  *  The  next  portion  of  the  return  avers  that  if  any  sub- 
scription was  made  by  the  commissioners,  a  single  bond  was  deliv- 
ered in  payment  of  the  whole  amount;  and  that  this  exhausted  the 
power  of  the  commissioners  over  the  subject,  and  they  could  not 
afterwards  substitute  smaller  ones  in  lieu  of  the  larger  ones. 

The  averment  is  hypothetical ;  that  "if  any  subscription  was 
made".  This  at  once  condemns  it  as  a  plea.  It  wants  positiveness 
and  certainty.  How  can  a  legal  inference  be  drawn  from  premises 
not  asserted?  For  the  purpose  of  arriving  at  definite,  legal  conclu- 
sions, facts  are  pleaded ;  none  such  can  be  arrived  at,  from  a  hypo- 
thetical or  supposed  state  of  things. 

*  *  *  Succeeding  this  is  an  allegation,  on  information  and 
belief,  that  the  bonds  issued  to  the  company,  so  far  as  they  have  been 
sold,  were  sold  below  par,  and  in  violation  of  the  Act  of  April  i8th, 
1853.  This  plea  wants  positiveness  and  certainty.  It  is  not  alleged 
that  the  fact  is  true  that  they  were  so  sold,  nor  that  the  bond  of  the 
relator  was  so  sold,  nor  that  the  company  sold  them  below  par.  This, 
it  is  true,  may  be  inferred  to  be  what  is  intended  ;  but  this  is  defective 
pleadinf.    But  if  this  matter  were  well  pleaded,  and  held  to  be  ad- 


236      COMMONWEALTH   EX   REL.    ARMSTRONG  V.    COMMISSIONERS.      j    7 

mitted  by  the  demurrer,  which  I  do  not ;  yet  as  a  return,  it  was  care- 
fully considered  in  Thonias"s  case,  and  pronounced  insufficient,  and 
we  adhere  to  that  opinion,  for  the  reasons  there  set  forth. 

The  next  matter  alleged  was  determined  to  be  insufficiently 
pleaded  in  Hamilton  v.  Councils  of  the  City  of  Pittsburgh,  10  Cas. 
(Pa.  St.)  496.  It  is  in  substance,  after  being  stripped  of  accom- 
panying deprecatory  matter,  that  the  bond  of  the  relator  and  those  of 
the  "unnamed"  parties  for  whom  he  proposes  to  speak,  were  not 
transferred  in  conformity  with  the  law. 

The  rule  has  often  been  adverted  to  in  this  opinion,  that  facts,  the 
predicate  of  conclusions,  must  be  set  forth,  and  not  conclusions 
merely.  Want  of  conformity  to  law  in  the  transfer  is  here  averred. 
This  is  evidently  a  conclusion  from  facts.  Why  are  not  the  facts, 
from  which  the  conclusions  are  drawn,  averred  ?  They  either  exist, 
or  do  not  exist.  If  they  exist,  they  should  be  averred,  so  that  the 
court  might  determine  whether  the  conclusions  were  just  or  not; 
if  they  do  not  exist,  it  is  obvious  the  conclusions  are  good  for  nothing. 
We  see  that  the  bonds  in  form  pass  by  delivery.  If  any  other  requi- 
sites were  essential  to  transfer  them,  it  should  have  been  stated. 

*  *  *  The  next  averment  possesses  none  of  the  requisites  of 
a  plea  or  return  in  mandamus.  It  is  a  denial  by  way  of  protcstando, 
that  as  the  respondents  are  but  as  temporary  trustees  of  the  people, 
they  do  not  know  whether  the  relator  is  a  bona  Me  holder  of  bonds 
or  not,  and  therefore  deny  that  he  is,  and  pray  that  he  may  be  holden 
to  strict  proof.  This  is  a  tender  of  no  issue  in  law  or  fact,  and 
we  need  not  waste  time  with  it. 

The  next  averment  is,  that  the  bonds  of  the  other  holders  were 
not  transferred  according  to  law,  and  that  a  large  portion  of  them 
have  been  hypothecated,  as  a  security  for  loans  by  the  company,  at 
less  than  their  par  value,  and  that  other  large  amounts  thereof  were 
wrongfully  paid  out  by  the  president  on  his  own  individual  indebted- 
ness ;  and  that  a  still  larger  portion  is  yet  in  the  possession  of 
the  company,  or  has  been  sold  at  a  heavy  discount  since  the  failure 
of  the  company  to  pay  interest,  and  of  which  several  matters  and 
things  the  holders  had  notice. 

Now  what  bonds  were  thus  transferred  and  hypothecated?  No 
one  can  tell.  The  demurrer  does  not  admit  what  is  not  asserted  with 
sufficient  certainty  so  as  to  be  the  foundation  of  judicial  action. 
N'o  court  wf)iild  sav  how  many  of  those  bonds  were  disposed  of  as 
stated,  atul  hence  the  return  is  defective  on  account  of  its  vagueness. 
If  any  jiortion  remained  in  the  possession  of  the  company,  why 
did  not  the  county  take  measures  to  restrain  them,  by  enjoining 
the  company  from  negotiating  them,  and  thus  save  themselves 
as  well  as  innocent  parties  from  w^roug?  Good  faith  would  have 
required  this  rather  than  silence  and  acquiescence,  and  subsequent  re- 
ptKliatir»n.  Rut  in  regard  to  the  manner  in  which  the  matters  in 
this  i)r)rtif)n  of  the  return  are  presented,  they  are  not  to  be  taken 


§  7  PLEADING,  PRACTICE  AND  PROCEDURE.  237 

as  admitted  by  the  demurrer,  for  the  reason  that  they  are  not  well  and 
sufficiently  pleaded. 

The  next  avcnr.cnt  is  the  pendency  of  sundry  actions  in  the 
District  Court  of  the  county  of  Allegheny  by  the  holders  of  other 
bonds,  in  which  it  is  alleged  that  the  county  has  taken  full  defense. 

This  does  not  touch  the  relators'  case.  But  if  this  had  been  possi- 
ble, by  a  sufficient  plea,  it  is  a  novel  way  of  pleading  the  pendency 
of  an  action  or  actions,  to  set  out  neither  the  names  of  the  parties, 
cause  of  action,  nor  anything  upon  which  a  court  might  judicially 
determine  the  pendency  or  not,  or  that  the  cause  of  the  action 
was  the  same.     Such  looseness  is  condemned  by  all  rules  of  practice. 

*  *  *  In  the  next  place,  it  is  averred  that  there  is  no  authority 
to  levy  a  tax  for  the  payment  of  the  interest  by  the  county.  We 
have  already  treated  of  this,  and  said  that  the  authority  to  create 
the  debt  implies  an  obligation  to  pay  it,  and  where  no  special  mode  of 
doing  so  is  provided,  it  is  also  implied  that  it  is  to  be  done  in  the 
ordinary  way — by  the  levy  and  collection  of  taxes.  This  plea  is  in- 
sufficient. 

Again :  it  is  averred  that  the  commissioners  cannot  in  one  year 
exceed  one  per  cent,  on  the  adjudged  valuation  for  county  pur- 
poses, and  that  as  other  proceedings,  similar  in  purpose  to  the 
present,  are  pending  to  coerce  the  payment  of  interest  on  two 
millions  of  dollars  or  thereabouts ;  this,  with  the  assessment  for  or- 
dinary purposes,  will  greatly  exceed  the  limit  of  one  per  cent. 
— and  that  they  believe  that  one  per  cent,  will  be  required  to  meet 
the  ordinary  wants  of  the  county.  This  plea  is  uncertain  and  contin- 
gent and  is  not  good.  It  is  not  averred  that  in  obedience  to  any- 
proceedings  against  them,  or  otherwise,  they  have  determined  upon 
and  directed  the  levy  of  a  tax  to  the  extent  of  their  authority, 
but  only  that  they  may  be  called  on  to  do  so ;  and  inasmuch  as  they 
may  be  called  on  to  go  further  than  they  have  authority,  they 
will  not  consent  to  assess  any  tax  for  the  payment  of  any  interest. 
Had  they  averred  a  resolution  or  a  determination  to  levy  to  the 
extent  of  their  authority,  quite  another  question  would  have  been 
raised.  But  I  will  not  anticipate  it.  Nor  is  the  asseveration  of  belief 
that  one  cent  on  the  dollar  will  be  required  for  ordinary  purposes, 
sufficient.  Facts  upon  which  that  belief  was  founded  should  have 
been  set  forth,  so  that  the  court  might  judge  whether  it  was 
well  founded  or  not. 

*  *  *  The  matter  next  following  in  regard  to  the  discretion 
of  the  commissioners  in  assessing  the  tax,  and  their  cjuasi-judicial 
duties  in  respect  to  it,  is  insufficient,  and  has  been  so  held  in  both 
the  cases  already  decided. 

So,  too,  as  to  the  necessity  of  a  demand  for  interest  before  insti- 
tuting proceedings.  The  relator  sets  forth  the  equivalent  of  this 
in  charging  a  refusal  to  provide  for  its  payment,  and  the  facts  to 
establish  it,  viz. :  the  assessment  of  it  by  one  board  of  commissioners 


238  CHAMBERLAIN  V.   CITY  OF   CHICAGO.  §    7 

in  1857,  ^"<i  its  countermand  not  long  thereafter.  These  facts  are 
not  denied  by  the  respondents,  but,  on  the  contrary,  they  are  justified 
by  them  as  done  in  "obedience  to  the  express  wishes  of  the 
people."  This  was  predetermined  refusal,  and,  standing  in  this 
position  always  afterwards,  of  what  avail  would  a  demand  have 
been  ?  Acts  and  declarations  amounting  to  a  refusal,  and  showing 
that  such  would  have  followed  a  demand,  would  certainly  dispense 
with,  because  equivalent  to,  a  demand.  The  law  does  not  exact 
the  performance  of  vain  things,  and  it  would  have  been  idle  enough 
in  the  face  of  such  acts  to  have  made  a  demand.  If  the  commis- 
sioners had  shown  that  it  would  have  been  effectual,  it  is  not  prob- 
able that  the  plaintiff  would  have  taken  much  by  the  writ.  This 
point,  however,  was  decided  against  the  respondents  in  Hamilton 
V.  Councils,  and  we  reiterate  it  here. 

:;:  *  *  q-j^g  ]ggj.  rnatter  to  be  determined  is  the  interposition 
of  a  principle  of  law  by  the  respondents.  It  is  in  substance  that 
the  subscription  was  made  solely  in  obedience  to  the  legislative 
mandate,  and  not  enforceable  as  a  contract  of  the  county.  And 
further,  that  the  exercise  of  the  taxing  power  invoked  by  the  relator 
is  an  act  of  sovereignty  resting  in  the  will  of  the  respondents, 
and  cannot  be  coerced,  in  short  that  the  commissioners  are  imperium 
in  impcrio.  But,  in  the  cases  so  often  referred  to  against  the 
city  and  county,  it  has  been  determined  that  the  duty  to  assess 
a  tax,  is  enforceable,  and  that  mandamus  is  the  appropriate  rem- 
edy ;  and  consequently  that  the  commissioners  and  councils  are 
not  sovereign  in  this  behalf.  We  are  satisfied  with  those  decisions, 
and  with  the  doctrine  "stare  decisis." 

Upon  a  careful  review  of  the  facts  of  this  return  and  the  argu- 
ments in  support  of  it,  we  must  adjudge  it  insufficient.  Neither 
in  form  nor  in  substance  is  it  sufficient  to  prevent  a  peremptory 
mandamus  from  issuing  to  the  respondents,  commanding  them  to 
make  provision,  by  the  assessment  of  a  sufficient  tax,  to  pay  the  inter- 
est on  the  bonds  of  the  coimty,  issued  in  payment  of  stock  to  the 
Pittsburgh  and  Connellsville  Railroad  Company,  amounting  to  the 
sum  of  $750,000.  Judgment  must,  therefore,  be  entered  upon  the 
demurrer  against  the  respondents,  and  a  peremptory  mandamus 
awarded. 


PF.OPLE  Rx   HKi.   CHAMBERLAIN  v.   CITY  OF  CHICAGO. 
(Rr.r.     Sci'KEME  Court  of  Illinoi.s.     25  111.  402. 

Mr.  Ji'.siKi:  W'Ar.KFR  delivered  the  opinion  of  the  court. 
It  is  objected  that  an  alternative  writ  of  mandamus  should  not 
issue,    hrrausc    tlic    petition    is    not    verified    or    su])portcd    by    affi- 


§  7  PLEADING,  PRACTICE  AND  PROCEDURE.  239 

davits.  Tapping  on  Mandamus,  292,  lays  down  the  rule  that 
"In  matters  of  right,  as  for  instance,  where  a  mandamus  is  prayed 
to  restore  a  man,  etc.,  the  court  does  not  require,  although  it  is 
usually  supplied  with,  an  affidavit  of  the  fact ;  but  where  the  writ 
is  asked  upon  a  supposed  failure  of  duty,  then  the  court  requires 
an  affidavit,  for  such  a  writ  is  never  granted  merely  for  the 
asking ,  some  reason  must  be  assigned  for  it,  which  is  done  by  the 
disclosure  of  a  sufficient  case  upon  affidavits."  This  rule  seems  to  be 
fully  sustained  by  long  and  well  recognized  practice.  Rex  v.  Gary, 
3  Salk.   (K.  B.)  230,  and  cases  there  cited  in  support  of  the  rule. 

Whilst  the  strict  English  rule  of  supporting  the  application  by 
separate  affidavits,  is  not  regarded  essential  by  our  practice,  still 
the  petition  must  contain  a  statement  of  all  the  facts  necessary 
to  disclose  a  case  entitling  the  party  to  the  relief  sought,  and 
they  must  be  verified  by  a  jurat,  or  affidavit  in  some  form.  This 
is  the  practice  as  it  prevails  in  this  country,  and  we  regard  it 
as  reasonable,  and  well  adapted  to  promote  the  ends  of  justice. 
In  this  case  the  petition  proceeds  for  the  failure  of  a  duty  by  the 
city,  and  the  facts  set  forth  in  the  petition,  even  if  they  are  suffi- 
cient to  make  a  case,  are  not  verified  by  a  jurat  or  otherwise,  and 
the  writ  must  therefore  be  refused. 

Writ  of  mandamus  refused. 

For  other  cases  on  the  essestials  of  the  petitions  see:  Ex  parte  Manu- 
facturing Co.,  103  Ala.  415;  Trustees,  etc.,  v.  People,  121  111.  552;  Bishop 
V.  Marks,  15  La.  Ann.  147;  State  v.  Slavens,  75  Mo.  508;  State  v.  Everett, 
52  Mo.  89;  People  v.  Sullivan  Co.  Supervisors,  56  N.  Y.  249;  State  v. 
Cardoza,  5  S.  Car.  297 ;  Cullem  v.  Latimer,  .t  Tex.  329 ;  State  v.  Jennings. 
56  Wis.  113;  State  v.  Gracy,  11  Nev.  223;  McLeod  v.  Scott,  21  Ore.  94; 
Klein  v.   Supervisors,  54  Miss.  254. 


WILLIAMS  V.  CITY  OF  NEW  HAVEN. 

1896.     Supreme  Court  of  Errors  of  Connecticut.     68  Conn.  263 , 

36  Atl.  61. 

(Mandamus  against  the  city  of  New  Haven  to  compel  the  aboli- 
tion of  a  grade  crossing  by  bridging  the  tracks,  in  compliance  with 
a  prior  order  of  the  court.) 

Andrews,  C.  J. — In  an  application  for  a  mandamus,  the  alter- 
native writ  serves  the  same  purpose  as  the  complaint  in  an  ordinary 
action,  and  it  must  show  a  prima  facie  case  upon  which  the  extraor- 
dinary remedy  asked  for  ought  to  be  issued.  In  the  present  action 
the  facts  alleged  in  the  alternative  writ  do  show  such  a  case,  viz., 
a  lawful  judgment  against  the  defendants,  anji  their  neglect  and 
refusal  to  comply  with  that  judgment. 


240  WILLIAMS  V.  CITY  OF  NEW   HAVEN.  §    7 

The  return  made  to  an  alternative  writ  of  mandamus  stands  in 
the  place  of  an  answer  in  ordinary  pleadings,  and  is  insufficient  unless 
it  shows  a  complete  legal  right  to  refuse  obedience  to  the  command  of 
the  alternative  writ.  "It  must  state  the  facts  which  justify  such 
refusal  clearlv,  specifically  and  with  such  sufficient  certainty  that 
the  court  can  see  at  once  that  such  facts,  if  admitted  or  established, 
do  furnish  a  legal  alternative  for  obedience  to  the  writ."  Wood- 
rufl  V.  Railroad  Co.,  59  Conn.  63,  86,  20  Atl.  17;  Brainard  v. 
Staub,  61  Conn.  570,  24  Atl.  1040 ;  Moses  Mand.  203 ;  High  Extr. 
Rem.  §  449.  The  function  of  the  return  is  not  simply  to  show  what 
would  amount  to  a  prima  facie  right  in  the  respondent  in  the  absence 
of  any  allegation  to  the  contrary,  but  to  show  a  right  to  refuse  obe- 
dience to  the  writ  in  view  of  the  allegations  the  writ  contains ; 
and,  if  it  does  not  do  this,  it  is  demurrable.  The  return  should, 
for  the  purpose  of  making  an  issue,  set  up  a  positive  denial  of  the 
facts  stated,  or  should  state  other  facts  sufficient  to  defeat  the 
relator's  right.  14  Am.  &  En.  Ency.  of  Law,  230.  This  is  the  rule  by 
which  the  return  before  us  must  be  treated.  Does  it  show  a  legal 
right  to  refuse  obedience  to  the  command  in  the  alternative  writ? 
We  are  compelled  to  say  that  we  think  it  does  not.  It  is  divided 
into  five  paragraphs.  In  none  of  them  does  it  deny  any  of  the 
allegations  contained  in  the  alternative  w-rit.  The  matters  and 
things  set  forth  in  the  first,  second,  and  fifth  paragraphs  are  not 
alleged  as  an  excuse  for  an  entire  non-compliance  with  the  command 
of  the  alternative  writ,  but  are  addressed  to  the  discretion  of  the 
superior  court,  as  a  reason  why  the  issuing  of  the  peremptory  writ 
should  be  delaved  for  a  time.  The  superior  court  has,  doubtless, 
a  large  discretion  in  respect  to  the  issuing  or  the  non-issuing  of 
a  writ  of  mandamus,  and  very  likely  may  fix  a  time  prior  to  which 
the  peremptory  writ  may  not  be  issued.  Whether  or  not  the  matter 
alleged  in  the  above-named  three  paragraphs  of  the  return  are 
such  as  would  justify  the  exercise  of  such  a  discretion  rests  entirely 
with  the  superior  court.  That  is  a  question  not  arising  on  the 
demurrer.  In  passing  upon  that  question,  the  superior  court  would 
not  be  likely  to  forget  that  the  city  had  delayed  for  some  five  or 
six  years  to  perform  the  judgment  set  forth  in  the  alternative 
writ,  for  which  delay  no  excuse  is  suggested  other  than  its  own 
convenience. 

The  matter  set  forth  in  the  third  and  fourth  paragraphs  is  some- 
what (liffcrcnt.  It  is  to  the  olfect  that  the  charter  of  the  city  requires 
the  common  council,  in  December  of.  each  year,  to  make  appro- 
priations to  meet  the  necessary  expenses  of  the  city  for  the  year  next 
ensiling,  and  forbids  rdl  citv  officers  and  boards  to  expend  any 
monry,  or  to  incur  any  liability,  in  excess  of  the  sums  so  appro- 
pri.'iff-d  ;  that  Ihf  common  comicii  in  December,  1895,  made  certain 
ai^propriations  for  the  expenses  of  the  city  for  the  year  then  next 


§  7  PLEADING,  PRACTICE  AND  PROCEDURE.  24 1 

following,  "and  nothing  was  appropriated  by  said  court  of  common 
council  for  the  purpose  of  constructing  a  bridge  across  the  said 
freight  branch  of  the  N.  Y.,  N.  H.,  &  ?I.  R.  R.  Co." ;  that  to  construct 
said  bridge,  it  would  be  necessary  for  some  officer  or  board  to  incur 
a  liability  or  expense  in  excess  of  the  appropriations,  which  no 
officer  or  board  had  power  under  the  charter  or  under  the  law  to  do. 
If  these  facts  are  a  legal  excuse  for  refusing  to  obey  the  command 
of  the  alternative  writ,  they  are  so  because  the  omission  of  the  com- 
mon council  to  provide  the  means  of  complying  with  the  judgment 
of  the  superior  court  absolves  the  city  from  the  legal  duty  of  per- 
forming the  judgment.  Except  that  these  facts  are  stated  with  ap- 
parent sincerity,  and  are  argued  with  gravity,  this  part  of  the 
return  would  almost  be  deemed  ironical ;  especially  when  it  is  pre- 
sented to  the  same  court  which  rendered  the  judgment  sought  to  be 
enforced.  The  provisions  of  the  charter  of  New  Haven  certainly 
furnish  the  rule  of  conduct  for  the  officers  of  that  city,  in  the  adminis- 
tration of  its  internal  affairs,  but  that  these  provisions  can  furnish 
any  excuse  to  the  city  or  its  officers  for  not  obeying  the  laws  of  the 
state,  or  the  judgment  of  a  competent  court,  is  not  to  be  tolerated 
for  an  instant.    Cook  v.  City  of  Ansonia,  66  Conn.  413,  34  Atl.  183. 

There  is  another  reason,  not  stated  in  the  return,  but  argued  in 
the  briefs,  which  we  think  it  proper  to  notice.  It  is  that  the  writ 
of  mandamus  should  be  directed  to  that  officer  or  board  which  is 
specially  charged  with  the  performance  of  the  thing  ordered  to  be 
done.  In  all  these  cases  w'here  there  is  such  a  corporate  officer  or 
board,  we  understand  the  rule  to  be  as  claimed  by  the  city.  In  tlie 
case  of  State's  Attorney  v.  Selectmen  of  Brandford,  59  Conn.  402. 
22  Atl.  336,  the  selectmen  were  such  a  board.  In  the  case  of  State 
V.  County  Commissioners,  68  Conn.  16,  35  Atl.  801,  the  courrtv 
commissioners  were  such  a  board.  In  the  recent  case  of  State 
V.  Williams,  68  Conn.  131,  35  Atl.  24,  421,  the  defendant  was  a 
town  treasurer,  whose  duty  was  expressly  pointed  out  by  the  statute. 
By  the  charter  of  New  Haven,  there  is  no  such  officer  or  board ; 
and  in  such  cases  the  mandamus  may  be  directed  to  the  city  in  its 
corporate  capacity.     Dillon  Mun.  Cor.  §  861  b,  and  note. 

The  superior  court  is  advised  that  the  return  is  insufficient,  and 
to  sustain  the  demurrer.     The  other  judges  concurred. 


STATE  EX  REL.  MOUNTAIN  GROVE  BANK  v.  DOUGLAS 

COUNTY. 

1898.     Supreme  Court  of  Missouri.     148  Mo.  37. 

(Relator  brought  suit  by  mandamus  to  compel  the  countv  court 
to  pay  a  certain  judgment  recovered  against  the  county.  Relator 
further  charged  in  the  alternative  writ  that  the  county  had  $3,300 


242  MOUNTAIN  GROVE  BANK  V.  DOUGLAS  COUNTY.  §    7 

in  its  treasury,  unappropriated  and  liable  to  the  payment  of  said 
judgment.  To  this  respondent  returned,  setting  forth  the  collec- 
tion of  back  taxes  for  certain  years  generally  and  that  said  county 
court  had  set  aside  and  appropriated  all  the  sums  so  collected  for 
said  named  years,  and  that  all  of  said  sums  were  liable  for  the 
payment  of  warrants  already  issued.  Relator  demurred  to  this 
return  and  moved  for  judgment  on  the  ground  that  said  return  did 
not  show  a  legal  excuse  for  disobedience  of  the  writ,  in  that  it  did 
not  particularly  and  specifically  set  forth  the  sums  collected  in  back 
taxes  by  separate  years  nor  show  specifically  the  sums  appropriated  in 
these  respective  years.) 

Robinson,  J. — 

(Omitting  part  of  the  opinion)  *  ■•'  *  To  this  return  or  an- 
swer, the  relator  filed  its  motion  for  judgment  in  the  nature  of  a  de- 
murrer to  the  legal  sufficiency  thereof,  and  upon  the  cause  coming 
on  for  hearing,  on  said  motion,  the  court  found  the  issues  for  the 
respondent  and  the  relator  prosecuted  its  appeal  from  said  judg- 
ment to  this  court  after  the  usual  preliminaries  to  that  end. 

Does  the  return  show  a  legal  excuse  for  refusing  obedience 
to  the  commands  of  the  alternative  writ,  is  the  only  question  at 
issue.  Though  the  answer  might  have  been  made  more  definite 
and  specific,  and  have  been  more  enlightening  to  the  court  and 
satisfying  to  the  relator,  when  it  undertook  to  classify  in  part 
the  funds  in  the  hands  of  the  treasurer,  and  to  designate  the  year 
in  which  said  funds  belonged  ;  and  though  we  do  not  understand 
why  the  county  court  could  not  have  ascertained  what  part  of 
the  sum  of  $2,681.40,  collected  in  the  year  1893,  as  back  taxes 
for  the  years  1889,  1890,  1891,  1892  and  for  the  current  year  1893, 
and  returned  by  the  collector  to  the  treasurer  of  Douglass  county 
as  county  revenue,  and  have  stated  exactly  what  part  thereof  was 
collected  for  each  of  these  years  designated,  still  the  return  does 
allege  that  the  county  court  set  apart  and  apportioned  all  the  said 
sum,  so  collected,  in  the  hands  of  the  treasurer  to  the  various 
funds,  for  county  purposes,  for  the  years  1889,  1890,  1891,  1892  and 
1893,  and  that  all  of  said  sums  were  fully  covered  by  and  liable 
for  the  payment  of  warrants  duly  and  legally  issued  by  the  county 
court  upon  the  various  funds  to  which  it  had  been  appropriated. 
If  the  relator  was  not  satisfied  with  the  return,  on  account  of  its 
indcfinitencss  in  that  particular,  it  slumld  have  by  proper  pro- 
ceedings required  the  return  to  be  made  more  specific,  or  have 
ptit  it  in  issue  by  a  denial  the  allegation  of  fact  thus  stated  in 
such  general  terms.  Not  having  done  either,  but  .standing  on  its 
motion,  in  the  nature  of  a  demurrer  to  the  return,  we  think  the 
conrl  ,'irtcd  rightly  in  finding  as  it  did.  The  presumption  must 
be  infliilgod.  nothing  to  the  contrary  appearing,  that  the  county 
court  difl   its  duty   properly  when   it  a]^])ortioncd   ;ui(l   apiiropriated 


§    7  PLEADING,  PRACTICE  AND  PROCEDURE.  243 

the  money  in  the  hands  of  the  treasurer  to  the  proper  funds  for 
the  various  years  designated  in  the  return,  although  it  did  say  in  its 
return  that  it  did  not  know  what  part  of  the  said  sum  of  $2,681.40 
so  collected  and  turned  over  to  the  treasurer,  was  collected  as 
back  taxes  for  any  designated  year.  It  may  further  be  said  in 
support  of  the  judgment  of  the  trial  court,  that  the  respondents  b}- 
their  return  denied  generally  that  there  was  in  the  hands  of  the 
treasurer  of  Douglass  county  any  money  of  said  county  unappro- 
priated to  the  payment  of  any  demands  against  the  county  and 
liable  and  appropriate  to  the  payment  of  relator's  judgment  to  the 
amount  of  $3,300  or  any  other  sum.  As  relator  has  elected  to 
stand  on  its  demurrer  so  it  must  abide  the  consequences  of  its 
position.  Respondent's  return  if  true,  and  so  it  must  be  treated 
for  the  determination  of  the  issues  of  this  case,  is  a  legal  excuse 
for  not  complying  with  the  command  of  the  alternative  writ,  and 
the  judgment  of  the  circuit  court  will  be  sustained.     All  concur. 

For  other  cases  on  the  essentials  of  a  proper  return  see :  People  v.  Ohio 
Grove,  51  111.  191;  Hooper  v.  New,  85  Md.  565;  May  v.  Finly,  91  Tex. 
352;  State  V.  Kellogg,  95  Wis.  672;  Gorgas  v.  Blackbur,  14  Ohio,  252; 
Green  v.  African  Methodist,  etc.,  Church,  i  Serg.  &  R.  (Pa.)  254;  State 
v.  Williams,  95  Mo.  159;  State  v.  Morris,  103  Ind.  161;  Evans  v.  Thomas, 
32  Kan.  469. 


STATE  EX  REL.  SHERMAN  v.  COMMON  COUNCIL  OF  MIL- 
WAUKEE. 

1865.     Supreme  Court  of  Wisconsin.     20  Wis.  87. 

Downer,  J. — The  defendant  moves  to  discharge  and  set  aside  the 
rule  to  show  cause  why  a  peremptory  writ  of  mandamus  should  not 
issue.  This  motion  must  be  regarded  as  a  demurrer,  and  the  state- 
ments of  the  relator  taken  as  true.     *     *     * 

By  the  Court. — The  motion  is  overruled,  and  leave  given  to 
answer  in  twenty  days. 

See  also,  People  v.  Harris,  6  Abb.  Pr.  (N.  Y.)  30;  State  v.  Board,  10 
Iowa,  157;  State  v.  County  Court,  33  W.  Va.  589;  State  v.  Neville,  157 
Mo.  386;  Crans  v.  Francis,  24  Kan.  750;  Commonwealth  v.  Lyndall,  2 
Brews.    (Pa.)    425;    Borgstede   v.    Clarke,   5   La   Ann.   291. 


5.     Practice   in   Mandamus   Suits. 

The  practice  in  Mandamus  is  so  largely  affected  by  the  statutory 
provisions  that  nought  but  a  few  essential  features  of  the  pre- 
vailing present  practice  can  be  noticed  here. 

At  present  the  general  practice  is  to  present  to  the  court  an  appli- 
cation in  the  form  of  a  petition  or  complaint,  or  affidavits  (in  a  few 


244  LOOLITTLE  V.    COUNTY   COURT  OF   CAP.ELL   COUNTY.  §    J 

States),  as  a  basis  for  granting-  the  alternative  writ.  This  application 
is  invariably  ex  parte.  If  such  application  presents  a  prima  facie 
case  the  alternative  writ  issues  and  same  must  be  duly  served  on 
respondent,  who,  unless  he  obeys  the  order  therein  contained,  may 
either  demur,  move  to  quash,  or  to  discharge  the  rule  to  show  cause 
or  make  return.  To  the  return  the  relator  may  either  demur,  move 
to  quash,  or  proceed  to  trial  on  the  issues  presented. 

The  practice  of  issuing  a  rule  to  show  cause  before  issuing  the 
alternative  writ  has  gradually  disappeared  and  exists  now  only 
in  \\'isconsin  and  perhaps  a  few  other  states. 

Upon  trial  of  the  issues  presented  in  the  petition  and  return, 
if  judgment  be  for  relator  it  is  that  a  peremptory  writ  issue; 
the  only  proper  return  to  the  peremptory  writ  is  obedience. 

In  extremely  rare  cases  it  is  possible  that  the  peremptory  writ 
may  issue  immediately  upon  presentation  of  the  petition.  Such 
cases  are,  however,  so  rare  and  unusual  as  not  to  deserve  being 
characterized  as  exceptions. 

The  manner  of  service  and  length  of  notice  are  matters  wholly  of 
statutory  regulation.  The  service  of  the  alternative  writ  is  usually 
a  personal  service ;  always  of  the  peremptory  writ. 

Disobedience  of  the  commands  of  the  peremptory  writ  is  punished 
by  attachment  for  contempt.  Costs  usually  follow  the  event  of 
the  suit. 


DOOLITTLE  et  al.   v.  COUNTY  COURT  OF  CABELL 

COUNTY. 

1886.     Supreme  Court  of  West  A'iroinia.     28  W.  Va..  158. 

Greene,  J. —  (Omittinp;  part  of  the  opinion.)  *  *  * 
"i.  The  usual  and  proper  mode  of  proceeding  in  this  state  in 
cases  of  Mandamus  is  for  the  ])laintiff  to  file  a  petition  in  the  couft 
having  jurisdiction  of  the  case  setting  forth  the  facts  of  his  case, 
on  which  he  bases  his  claim  for  a  mandamus,  and  praying  for  the 
writ,  specifying  in  his  petition  the  specific  act  or  acts,  which  he 
asks  to  have  the  defendant  commanded  {0  ])erform.  The  facts 
set  out  in  this  ])ctition  must  be  such  as  prima  facie  entitle  the  plain- 
tiff to  the  relief  he  seeks,  and  the  petition  should  lie  supported  by 
affidavit,  if  filed  by  a  private  person.  On  filing  of  this  petition  which 
is  ex  parte,  tlie  court,  if  a  prima  facie  case  is  thereby  made  out, 
on  the  plaintifiF's  motion  makes  an  order,  which,  reciting  that  the 
petition  is  filed,  orders,  that  the  defendant  after  being  previously 
served  with  a  copy  of  the  order  to  appear  on  a  certain  day  fixed 
by  the  court  and  show  cause  if  any  he  can.  wherefore  a  writ  of 
mandamus  should  not  be  awarded  the  plaintiff  to  command  the 
defendant    to   Ac  the   specified    acts,    which   command    should    cor- 


§  7  PLEADING,  PRACTICE  AND  PROCEDURE.  245 

respond  with  that  asked  for  in  the  petition.  If  on  the  return  day  of 
this  rule  it  has  been  served  and  the  defendant  files  no  answer,  the 
court  either  orders  a  peremptory  mandamus  to  issue  against  him 
or  compels  him  to  file  an  answer,  as  one  or  the  other  may  be  proper 
in  the  particular  case.  If  he  files  an  answer;  and  it  be  insufficient 
at  law,  the  court  proceeds  as  if  no  answer  had  been  filed ;  if  it  be 
sufficient  in  law,  no  peremptory  mandamus  is  issued,  but  if  the 
court  sees,  that  there  is  a  disputed  question  of  fact  between  the 
parties,  it  should  order  an  alternative  writ  of  mandamus  to  be 
issued,  and  it  does  not  permit  a  demurrer  or  a  replication  to  be 
filed  to  the  answer  to  the  rule ;  or  the  court  may  and  usually  does 
dispense  with  the  issuing  a  rule  to  show  cause  why  a  mandamus 
should  not  issue,  and  immediately  on  the  filing  of  the  petition, 
if  a  prima  facie  case  is  thereby  made  out,  orders  an  alternative 
writ  of.  mandamus  to  be  issued.  The  alternative  writ  sets  forth  by 
distinct  recital,  and  not  by  reference  to  the  petition,  all  the  facts  nec- 
essary to  show  the  plaintiff's  right  to  the  writ  of  mandamus  which 
he  asks ;  and  by  it  the  defendant  is  commanded  to  perform  the  par- 
ticular act  specified  in  it  (which  should  properly  be  the  same  as 
that  stated  in  the  rule  or  petition,  but  which  may  be  different)  or 
that  cause  be  shown  to  the  contrary  in  a  given  time.  It  is  re- 
garded as  the  plaintiff's  declaration.  If  the  defendant  does  not 
make  a  return  to  this  alternative  writ,  the  court  may  either  order 
a  peremptory  writ  of  mandamus,  or  enforce  the  filing  of  a  return, 
as  may  be  proper  in  the  particular  case.  The  defendant  may  move 
to  quash  the  alternative  writ,  which  is  equivalent  to  a  demurrer  to  it, 
or  he  may  make  a  return.  This  return  is  regarded  as  his  plea ; 
and  it  may  be  replied  to,  and  the  pleading  proceed,  as  in  ordinary 
common  law  suits,  till  an  issue  of  fact  or  law  is  reached  and  tried. 

"2.  To  the  pleadings  in  cases  of  mandamus,  the  ordinary  rules 
of  pleading  are  applied,  neither  greater  nor  less  certaintv  being- 
required  in  them  than  in  the  pleadings  in  ordinary  common  law 
suits.  But  the  facts  set  forth  by  the  plaintiff  in  the  alternative 
writ  of  mandamus  are  set  forth  by  way  of  recital  and  not  in  the 
positive  manner  that  is  required  in  an  ordinary  declaration  in  a 
common  law  suit."     *     *     * 


PEOPLE  EX  REL.  ASPINWALL  v.  THE  SUPERVISORS  OF 
THE  COUNTY  OF  RICHMOND. 

1863.     Court  of  Appeals  of  New  York.     28  N.  Y.   112. 

The  relator  sued  out  a  mandamus  requiring  the  supervisors  to 
audit  certain  damages  assessed  for  the  land  of  the  relator  taken 
for  a   highway,  and  to  the   end   that  the   same   should   be   levied 


246  ASPIXWALL   V.    THE   SUPERVISORS.  §    7 

and  collected  in  the  town  of  Southfield,  or  to  show  cause,  etc. 
The  supervisors  answered  the  writ,  denying  some  oi  the  allega- 
tions in  it,  and  alleging  some  new  matters.  The  relator  replied, 
and  the  issues  were  tried  at  a  circuit,  and  the  court  directed  the 
jury  to  render  a  verdict  for  the  relator  for  $200,  the  original  claim, 
and  the  interest  thereon,  amounting  to  $84.  To  this  direction 
the  defendant  excepted.  The  verdict  was  for  $284,  for  which  sum 
and  costs  judgment  was  entered,  and  it  was  affirmed  at  general 
term.    There  was  no  other  judgment.     *     *     * 

Marvin,  J. — 'It  will  be  seen  on  consulting  the  case  as  reported 
in  N.  Y.  Rep.  vol.  20,  p.  252,  that  most  of  the  questions  originally 
raised,  and  some  of  which  are  reviewed,  have  been  disposed  of  by  this 
court. 

The  regularity  of  the  proceedings  in  laying  out  the  highway 
and  in  assessing  the  damages,  and  the  proceedings  of  the  relator 
to  procure  the  action  of  the  board  of  supervisors,  as  then  dis- 
cussed, were  affirmed.  There  was  nothing  in  the  case  then  calling 
for  or  justif}'ing  any  decision  or  opinion  touching  the  form  of  the 
judgment  to  which  the  relator  was  entitled.  Can  this  judgment 
against  the  supervisors  be  sustained?  No  case  in  point  is  cited, 
but  we  are  referred  to  the  statute,  by  which  the  person  prosecuting 
the  wTit  of  mandamus  may  demur  or  plead  to  the  return  made  to 
the  writ,  to  which  the  person  making  the  return  shall  reply,  take 
issue  or  demur,  and  declaring  that  "the  like  proceeding  shall  be 
had  therein,  for  the  determination  thereof,  as  might  have  been  had  if 
the  person  prosecuting  such  writ  had  brought  his  action  on  the  case 
for  a  false  return."  2  Rev.  Stat.  586,  §  15.  By  the  17th  section  it 
is  declared,  that  "in  case  a  verdict  shall  be  found  for  the  person 
suing  such  writ,  or  if  judgment  be  given  for  him  on  a  demurrer 
or  by  default,  he  shall  recover  damages  and  costs  in  like  manner 
as  he  might  have  done  in  such  action  on  the  case  as  aforesaid,  and 
a  ]>crcmptory  mandamus  shall  be  granted  to  him  without  delay." 
It  seems  to  have  been  supposed  that  in  case  the  return  to  the 
writ  was  false,  the  proceedings  might  be  regarded  as  an  action 
on  the  case  for  a  false  return,  and  that  the  relator  would  be 
entitled  to  recover  of  the  defendants  as  damages  the  amount  he 
was  entitled  to  receive  of  the  town  of  Southfield,  waiving,  I 
suppose,  his  right  to  a  peremptory  mandamus.  Such  view  would 
he  entirely  erroneous.  A  brief  reference  to  the  history  of  the 
])rocec(lings  by  mandamus  will  enable  us  to  better  understand  the 
.statute.  A  mandamus  is  a  prerogative  writ  issuing  in  the  name  of 
the  king  from  the  coin^t  of  King's  Bench,  and  directed  to  any  per- 
Sf)n,  cor])oration,  or  inferior  court,  etc.,  requiring  them  to  do  some 
particular  thing  which  appertains  to  their  office  and  duty.  It 
was  introduced  tf)  prevent  disorder  from  a  failure  of  justice  and 
drfcrf   f,f  i.iiImc.     B.acon   Abrid.  tit.  Mandamus;  Jacob  Law  Diet. 


§    7  I'LEADIxNt;,   i'KACTICK  AND  PROCEDURE.  24/ 

same  title;  2  Blackstone  Comm.  no.  The  first  writ  issued  is  gener- 
ally alternative,  commanding  the  thing  to  be  done,  or  that  cause 
to  the  contrary  be  shown.  This  cause  might  be  shown  by  a  return 
to  the  writ,  which,  if  sufficient  in  law,  prevented  the  issuing  of  the 
peremptory  writ,  and  the  proceeding  came  to  an  end.  It  is  easy  to 
see  that  while  the  law  remained  in  this  condition  the  party  suing 
out  the  writ  might  be  defeated  of  his  rights,  by  a  return,  to  the 
writ,  of  facts,  good  in  law,  to  defeat  the  claim,  such  alleged  facts 
being,  however,  untrue.  In  such  a  case  the  party  suing  out  the 
writ  could  institute  an  action  on  the  case  for  a  false  return,  in  his 
own  name,  against  those  making  the  return,  and  could  recover  the 
damages  he  had  sustained  by  reason  of  such  false  return ;  and 
thereupon  the  court,  upon  a  new  motion  founded  upon  the  postca  or 
judgment  in  the  action  for  the  false  return,  would  grant  the  writ  of 
mandamus  in  the  peremptory  form.  Jacob  Law  Diet.  tit.  Mandamus  ; 
Bacon  Abridg.  tit.  Mandamus,  L.  &  M. ;  3  Blackstone  Comm.  in, 
264,  265. 

In  this  state  of  the  law  the  statute  of  9th  Anne,  Ch.  20,  was 
enacted,  authorizing  pleadings  by  the  parties  subsequent  to  the  re- 
turn and  trial  of  the  issues,  and  declaring  that  the  same  proceed- 
ings may  be  had  as  if  an  action  on  the  case  had  been  brought  for 
making  a  false  return,  and  that  damages  and  costs  might  be 
recovered,  and  declaring  that  a  peremptory  writ  of  mandamus 
shall  be  granted  without  delay,  as  might  have  been  had  the  return 
been  adjudged  insufficient.  Bacon  Abr.  tit.  Mandamus,  H.  The 
statute  of  Anne  related  to  officers,  and  some  subsequent  statutes 
extended  its  provisions  to  other  cases.  The  provisions  of  our  own 
statute  are  taken  from  these  statutes,  and  seem  to  include  all  cases. 
But  it  does  not  follow  that  the  relator  wnll  be  entitled  to  damages, 
other  than  nominal,  against  the  defendant  in  all  cases.  Under  the 
statute  of  Anne  and  our  statute  he  is  to  have,  upon  recovering 
judgment,  a  peremptory  mandamus  granted  to  him  without  delay. ' 
If  it  is  a  proper  case  for  damages  to  be  recovered  of  those 
against  whom  the  writ  is  prosecuted,  then  he  may  recover  such 
damages  in  addition  to  his  judgment  for  the  peremptory  mandamus, 
without  resorting  to  his  action  for  a  false  return.  In  the  case  of  an 
expulsion  from  office,  or  the  refusal  to  induct  into  an  office,  actual 
damages  may  have  been  sustained  by  reason  of  the  loss  of  the 
emoluments  of  the  office  during  the  time  of  the  deprivation.  But 
in  a  case  where  the  writ  itself  is  a  complete  remedy,  and  gives 
to  the  party  all  he  is  entitled  to,  how  can  it  be  said  that  he 
is  entitled  to  other  damages  against  the  defendants?  It  is  to 
be  kept  in  mind  that  the  peremptory  writ  is  to  be  granted  to  him 
without  delay.  In  this  case,  the  material  issues  being  found  in  favor 
of  the  plaintiff,  the  judgment  should  have  been  that  -a  peremptory 
mandamus  issue  to  the  board  of  supervisors  commanding  them  to 


248  SHARP  V.    WEEKS.  §    J 

audit  the  account  as  commanded  in  the  alternative  writ.  And  I 
see  no  ground  for  any  damages,  other  than  nominal,  against  the 
defendants,  provided  the  board  of  supervisors  can  be  required  to 
include  in  the  damages,  assessed  at  $200,  the  interest  thereon  from 
the  time  when  the  claim  was  presented  and  should  have  been  audited. 
If  this  cannot  be  done,  as  against  the  town  of  Southfield,  then  I 
am  inclined  to  think  the  defendants  may  be  liable  for  such  interests 
by  way  of  damages,  assuming  that  they  make  a  false  return  to  the 
writ. 

*  *  *  The  court  upon  consultation,  is  of  the  opinion  that 
the  supervisors  could  only  audit  the  damages  assessed,  with  the 
charges,  etc.,  as  provided  in  the  highway  act,  sec.  2  Rev.  Stat.  399, 
§  93,  5th  edition  ;  and  that  no  more  could  be  levied  or  collected  of 
the  town,  §  94.  That  as  the  return  of  the  supervisors  was  false, 
and  the  relator  has  been  kept  out  of  the  damages  to  which  he  was 
entitled  from  the  town,  the  supervisors  may  properly  be  made 
liable  in  damages  to  the  extent  of  the  interest  upon  the  $200,  to  wit, 
$84.  Also,  that  all  the  facts  are  before  the  court,  enabling  it  to 
modify  the  judgment  by  reversing  as  to  the  $200  damages,  and 
affirming  it  as  to  the  interest  as  damages,  and  directing  that  the 
judgment  be  so  amended  as  to  grant  to  the  relator  the  writ  of  manda- 
mus  without  delay.     Neither  party  to  have   costs   of  this  appeal. 

All   the   judges   concurring. 

Ordered  accordingly. 


STATE  EX  REL.  SHARP  v.  WEEKS. 
1887.     Si'PREME  Court  of  Missouri.     93   Mo.  499. 

Sherwood,  J. — *     *     * 

I.  The  alternative  writ  of  mandamus  was  issued  by  a  member 
of  this  court  in  vacation,  returnable  to  this  term.  A  motion,  based 
on  that  ground,  has  been  filed  to  quash  the  writ.  The  statute 
authorizes  a  judge  of  this  court  to  issue  such  a  writ  in  vacation. 
Rev.  Stat.  §  3254.  This  statutory  provision  docs  not  impinge  upon 
section  3,  of  article  (\  of  our  state  constitution.  Tf,  however,  such 
a  writ  should  be  issued  in  manner  as  aforesaid,  and  the  judges 
f>f  this  court  should  determine  that  it  had  been  improvidently  issued, 
this  might  result  in  the  writ  being  quashed  ;  but  this  result  would 
not  follow  merely  because  the  writ  was  issued  in  vacation.  The 
motion  to  f|uash  is,  therefore,  in  this  instance  denied.     *     *     * 

.Srr    scrtifin    4301    R.    S.    Mo.    ooff. 


CHAPTER  IT. 

QUO  WARRANTO. 

Section  1. — In  General. 

I.     Definition,  origin  and  history  of  the  writ. 

"A  WRIT  of  quo  ivarraiito  is  in  the  nature  of  a  writ  of  right 
for  the  king,  against  him  who  claims  or  usurps  any  office,  franchise 
or  Hberty,  to  inquire  by  what  authority  he  supports  his  claim,  in 
order  to  determine  the  right.  It  lies  also  in  the  case  of  non-user 
or  long  neglect  of  a  franchise,  or  mis-user  or  abuse  of  it ;  being 
a  writ  commanding  the  defendant  to  show  by  what  warrant  he 
exercises  such  a  franchise,  having  never  had  any  grant  of  it,  or 
having  forfeited  it  by  neglect  or  abuse.  *  *  *  And  in  case  of 
judgment  for  the  defendant  he  shall  have  an  allowance  of  his 
franchise;  but  in  case  of  judgment  for  the  king,  for  that  the 
party  is  entitled  to  no  such  franchise,  or  hath  disused  or  abused 
it,  the  franchise  is  either  seized  into  the  king's  hand,  to  be  granted 
out  again  to  w'homever  he  shall  please ;  or  if  it  be  such  a  franchise 
as  may  not  subsist  in  the  hands  of  the  crown,  there  is  merely 
judgment  of  ouster,  to  turn  out  the  party  w-ho  usurped." 

"The  judgment  on  a  writ  of  quo  zvarranto  (being  in  the  nature 
of  a  writ  of  right)  is  final  and  conclusive  even  against  the  crown. 
Which,  together  w^ith  the  length  of  its  process,  probably  occasioned 
that  disuse  into  which  it  is  now  fallen,  and  introduced  a  more 
modern  method  of  prosecution,  by  information,  filed  in  the  court 
of  king's  bench  by  the  attorney  general,  in  the  nature  of  a  writ 
of  quo  zvarranto:  wherein  the  process  is  speedier  and  the  judgment 
not  quit  so  decisive.  This  is  properly  a  criminal  method  of  prosecu- 
tion, as  well  to  punish  the  usurper  by  fine  for  the  usurpation  of 
the  franchise,  as  to  oust  him,  or  seize  it  for  the  crown  ;  but  hath 
long  been  applied  to  the  mere  purposes  of  trying  the  civil  right, 
seizing  the  franchise,  or  ousting  the  wrongful  possessor ;  the  fine  be- 
ing nominal  only."     Ill  P.lackstone  Comm.  262,  fif. 

"The  modern  information  in  the  nature  of  a  quo  zvarranto  mav 
be  defined  as  an  information,  criminal  in  form,  presented  to  a  court 
of  competent  jurisdiction,  by  the  public  prosecutor,  for  the  purpose 
of  correcting  the  usurpation,  mis-viser  or  non-user,  of  a  public  office 
or  corporate  franchise."    High,  Ex.  Leg.  Rem.  §  591. 


249 


250  DARLEY    V.    THE    QUEEN.  §     I 

DARLEY  V.  THE  QUEEN. 
1845.  House  of  Lords.     12  Clark  &  Finnelly,  520 ;  69  Rev.  Rep.  121. 

Lord  Chief  Justice  Tindal.-  • 

]\Iy  lords,  in  this  case  your  lordships  have  put  the  following 
question  to  Her  Majesty's  Judges,  viz : — "An  information,  in  the 
nature  of  a  quo  zvarranto,  having  been  granted  for  usurping  the 
office  of  treasurer  of  the  public  money  of  the  county  of  the  city  of 
Dublin,  and  a  judgment  having  been  awarded  by  the  court  thereon, 
is  such  judgment,  regard  being  had  to  the  nature  of  the  office,  er- 
roneous?" And  in  answer  to  this  question,  I  beg  to  state  that 
it  is  the  opinion  of  all  the  judges  who  heard  the  argument  at  your 
Lordships'  bar,  that  such  judgment  is  not  erroneous. 

The  mode  of  proceeding  by  information,  in  the  nature  of  quo  war- 
ranto, came,  no  doubt,  in  the  place  of  the  ancient  writ  of  quo  zvar- 
ranto.  This  writ  was  brought  for  property  of,  or  franchise  de- 
rived from,  the  crown.  The  earliest  is  to  be  found  in  the  9  Richard 
(I)  {Abbrcz'iatio  Placitorum,  p.  21),  and  is  against  the  incumbent 
of  a  church,  calling  on  him  to  show  quo  zvarranto  he  holds  the 
church.  Then  follow  many  others,  in  the  time  of  John,  Henry  H 
and  Edward  I,  for  lands,  for  view  of  frankpledge,  for  return  of 
writs,  holding  of  pleas,  free  warren,  plein-age,  and  presage  (Abbre- 
liatio  Brevium,  p.  210;  14  Edw.  L),  emendation  of  assize  of 
bread  and  beer,  pillory  and  tumbril,  and  gallows.  Some  of  these  are 
offices  or  in  the  nature  of  offices,  as  in  the  instance  of  the  returns 
of  writs  and  holding  of  courts. 

The  practice  of  filing  informations  of  this  kind  by  the  attorney 
general,  in  lieu  of  these  writs,  is  very  ancient ;  and  in  Coke's  Entries 
are  many  precedents  of  such  informations  against  persons  for 
usur])ing  the  same  sort  of  franchises,  as  claiming  to  be  a  corporation, 
to  have  waifs,  strays,  holding  a  court  leet,  court  baron,  pillory  and 
tumbriel,  markets,  prison,  or  for  usurping  a  public  office  as  con- 
servator of  the  Thames,  and  coal  and  corn  met-^^r. 

It  is  only  in  modern  times  that  informations  have  been  exhibited 
bv  the  King's  coroner  and  attorney.  The  first  reported  case 
IS  that  of  Rex  v.  Mayor  of  Hertford,  i  Ld.  Ray.  426,  in  10  Will. 
in.  And  it  is  a  mistake  to  supi)Ose  that  these  informations  were 
founded  on  the  statute  of  9  Anne,  Rex  v.  Gregory,  2  R.  R. 
371  and  in  Rex  v.  Williams  f  i  TJvirr.  402),  where  the  right 
to  fik;  an  information  at  coniinon  law,  by  the  coroner  and  attorney, 
against  a  person  for  holding  a  criminal  court  of  record,  was  rec- 
ognized. 

After  the  statute  of  4  &  5  W  &  M,  which  restrained  the  filing  of 
informations  bv  the    coroner  and    attorney,    the    sanction    of    the 


§    I  QUO   WARKAXTO,   IN    eiliXliRAL.  25I 

court  was  required,  and  after  that  statute  and  the  g  Anne,  it  exer- 
cised a  discretion  to  grant  or  refuse  them  to  private  prosecutors, 
according  to  the  nature  of  the  case.    ' 

It  has  uniformly  done  so  in  cases  under  the  statute  9  Anne,  c.  20, 
Rex  V.  Stacy,  3  T.  R.  (K.  B.)  2,  and  Rex  v.  Trevenen  (21  R.  R. 
364),  (2  B.  &  Aid.  479),  by  virtue  of  the  words  requiring  the 
leave  of  the  court.  In  the  case  of  the  bailifif  of  the  court  leet, 
the  court  granted  leave  to  file  an  information  expressmg,  however, 
a  doubt  whether  the  office  was  of  sufficient  importance  ;  and  in  that  of 
a  petty  constable  where  the  right  to  elect  was  in  dispute  be- 
tween the  inhabitants  and  the  lord  of  the  manor,  the  court  re- 
fused it  saying,  "no  doubt  the  king  has  the  right  to  call  any- 
one to  account  by  his  writ  of  qtio  zvarranto  for  exercising  any 
public  office  be  it  ever  so  small ;  yet  we  do  not  use  to  grant  in- 
formations in  the  nature  of  qtto  warranto  for  such  inferior  offices." 

Since  the  courts  have  exercised  a  discretion  under  the  Statute  of 
William  and  Mary  and  the  Statute  of  A.nne,  the  cases  in  which 
there  has  been  a  refusal  to  allow  an  information  to  be  filed  are 
rot  necessarily  authorities  against  the  validity  of  an  information 
when  filed,  because  in  the  cases  of  refusal  the  courts  may  have 
proceeded  on  the  ground  that  the  circumstances  were  not  such 
as  to  call  for  interference. 

On  the  other  hand,  those  in  which  informations  have  been  granted, 
are  authority  in  favour  of  their  validity.  That  an  information 
of  this  nature  will  lie  for  offices  granted  by  charter,  is  a  matter 
beyond  dispute ;  and  the  authorities  are  numerous  that  the  same 
remedy  is  available  against  intruders  into  offices  of  a  public  nature, 
which  are  supposed  to  be  immediately  or  mediately  derived  from  the 
crown,  and  existing  at  common  law,  though  of  a  very  subordinate 
character ;  as  bailifif  of  a  court  leet ;  Rex  v.  Bingham,  2  East  (K.  B.  ) 
308 ;  or  of  a  borough,  Rex  v.  Highmore,  i  Dowl.  &  Ry.  438 ;  5  B. 
&  Aid.  771 ;  a  constable,  Rex  v.  Goudge,  2  Str.  1213  ;  Rex  v.  Franch- 
ard,  2  Str.  1 149 ;  The  Stewart  of  a  court  leet.  Rex  v.  Hulston,  i 
Str.  661 ;  and  registrar  and  clerk  of  a  court  of  requests,  Rex  v. 
Hall  (25  R.  R.  321  (i  B.  &  C.  123)).  The  cases  of  overseers 
in  which  the  court  has  refused  the  liberty  to  proceed  in  this  way, 
may  be  possibly  explained  on  the  ground  that  it  did  not  see  fit 
to  interfere  with  officers  whose  functions  were  merely  temporary; 
so  also  as  to  church  wardens,  Rex  v.  Dawbeny,  (2  Str.  1196)  ; 
though  Lord  Kenyon  expresses  his  opinion  as  to  the  case  of  the 
latter  that  for  such  an  office  an  information  in  the  nature  of  a 
quo  warranto  will  not  lie,  for  it  lay  only  where  the  old  writ  of 
quo  zvarranto  could  have  lain,  and  that  would  not  lie  except  for 
a  usurpation  on  the  prerogatives  and  rights  of  the  crown :  Rex 
V.  Shepherd.  2  R.  R.  416,  4  T.  R.   (K.  B.)  381. 

But  supposing  that  this  proceeding  is  applicable  only  where 
rights  of  the  crown,  as  in  the  instances  of  offices  derived  from  the 


252  DARLEY  V.   THE  QUEEN.  §    I 

crown,  are  concerned,  it  is  not  confined  to  such  as  are  created  by 
charter,  or  which  may  be  presumed  to  have  been  originally  so 
created.  It  has  been  held  to  apply  to  offices  constituted  by  Par- 
liament; nor  can  any  good  reason  be  assigned  why  it  should 
he,  where  the  crown  alone  creates  the  office  by  its  prerogative,  and 
not  lie  where  it  creates  it  with  the  advice  and  consent  of  the 
Lords  and  Commons.  Accordingly  an  information  has  been  held 
to  lie  for  a  corporate  office  created  not  by  charter,  but  by  an  act 
of  Parliament ;  Rex  v.  Duke  of  Bedford  and  others,  i  Barnard 
K.  B.  242 ;  so  for  the  office  of  commissioners  for  paving  under  a 
local  act,  Rex  v.  Badcock,  6  East  (K.  B.)  359;  and  for  the  office 
of  trustees  of  a  harbour,  Rex  v.  Nicholson,  Str.  299;  though  con- 
stituted by  a  private  act,  their  duties  being  public ;  and  the  court 
said  that  informations  have  been  constantly  granted  when  any 
new  jurisdiction  or  public  trust  is  exercised  wnthout  authority,  and 
the  argument  that  these  informations  were  granted  only  where  the 
crown  alone  could  have  granted  the  franchise,  was  expressly  over- 
ruled. The  answer  attempted  to  be  given  to  the  last  mentioned  case, 
;vhen  cited  as  an  authority  in  the  present,  is,  that  this  office  concerned 
the  franchise  of  a  port :  but  this  was  not  satisfactory,  for  the  in- 
formation was  not  for  the  franchise,  but  for  the  office,  which  was 
clearly  created  by  Parliament,  and  the  reference  by  the  court  to  the 
circumstances  of  this  office  concerning  a  port,  is  only  to  show  that 
it  was  a  public  office. 

The  more  modern  authorities  are  conflicting,  informations  having 
been  granted  and  also  refused  for  the  usurpation  of  offices  created 
by  statute.  They  were  granted  .against  a  person  claiming  to  act 
as  guardian  of  the  poor  in  Exeter,  under  28  Geo.  Ill,  c.  76,  in  Hil- 
ary Term,  1816,  against  Paving  Commissioners  of  the  city  of  Exeter, 
in' the  year  1834;  Rex  v.  Bcedle,  42  R.  R.  437,  3  Ad.  &  El.  467, 
n.  In  1830,  in  the  case  of  Rex  v.  Hanley,  42  R.  R.  434,  3  Ad  & 
El.  463  Lord  Tenterden,  and  Taunton  and  Patteson,  Justices, 
were  granting  an  information  against  a  trustee  for  paving  and  light- 
ing under  a  private  act.  Mr.  Justice  James  Parke  was  in  favor  of 
it,  and  the  matter  was  terminated  without  any  judgment  being  de- 
livered. 

An  information  was  refused  against  ?  commissioner  of  the  poor 
and  for  watching,  under  a  local  act,  by  the  opinion  of  Taunton 
and  r^attcson,  Justices,  who  held  that  the  information  would  not  lie, 
Lord  Dcnman  doubting:  Rex  v.  Ramsdcn,  42  R.  R.  431,  3  Ad.  & 
I'^l.  456,  and  the  same  course  was  followed  in  Re  The  Aston 
L^iion.  6  Ad.  &  El.  y'i^S'  ll^c  judges  there  holding  themselves  bound 
by  the  former  decision  U)  refuse  a  quo  warranto  to  decide  the  validity 
of  ;in  clcrtion  of  a  guardian  of  the  ]toor  under  4  I'v  5  Will.  IV,  c.  76. 
Whether  in  the  former  case  or  the  latter,  the  court  decided  on  the 
ground  that  the  office  was  not  public  in  such  a  sense  as  to  make  it 
the  .subject  of  thnt  j)rocccding,  or  that,  being  created  by  the  act  of 


§     I  QUO    WARRANTO,   IN   GENE;RAL.  253 

Parliament,  and  not  by  charter,  the  remedy  b}-  information  was  im- 
proper, we  are  not  told  by  the  short  report  of  the  judgment  in  that 
case. 

On  whatever  grounds  these  two  last  cases  were  decided,  we  can- 
not consider  them  as  authorities  to  establish  the  position  that  a  quo 
icarraiito  information  will  not  lie  for  usurping  an  office  created  by 
Act  of  Parliament,  when  that  office  is  clearly  of  a  public  nature. 
And  after  a  consideration  of  all  the  cases  and  dicta  on  this  subject 
the  result  appears  to  be,  that  this  proceeding  by  information  in  the 
nature  of  quo  warranto  will  lie  for  usurping  any  office,  whether  cre- 
ated by  charter  alone,  or  by  the  crown,  with  the  consent  of  Parlia- 
ment, provided  the  office  be  of  a  public  nature,  and  a  substantive  of- 
fice, not  merely  the  function  or  employment  of  a  deputy  or  servant 
held  at  will  and  pleasure  of  others ;  for  with  respect  to  such  employ- 
ment, the  court  certainly  will  not  interfere  and  the  information  will 
not  properly  lie.  The  case  of  the  Registrar  of  the  Bedford  Level, 
Rex  v.  The  Corporation  of  Bedford  Level,  5  East  (K.  B.)  356,  and 
that  of  a  county  treasurer,  who  is  the  mere  serv^ant  of  the  justices 
in  England,  Rex  v.  Justices  of  Herefordshire,  22  R.  R.  830.  i 
Chitt.  700,  are  instances  of  this  latter  sort. 

There  are  then,  only  two  questions  with  respect  to  this  office. 
Was  it  public  ?  and  was  the  treasurer  the  mere  servant  of  the  Dublin 
magistrates  ? 

The  functions  of  the  treasurer  were  clearly  of  a  public  nature  he 
was  to  applot  the  assessment,  receive  and  hold  the  money  for  a  time, 
keep  it  subject  to  his  order  on  the  bank,  pay  the  expense  of  public 
prosecutions,  and  pay  other  public  moneys.  It  is  clearly,  therefore, 
of  a  public  nature,  and  it  is  equally  clear  that,  though  appointed  by 
the  magistrate  (sic.)  he  is  not  removable  at  their  pleasure,  and  must. 
we  think,  be  treated  not  as  their  servant,  but  as  an  independent 
officer. 

If  the  crown  had  established  this  office  with  precisely  the  same 
functions,  the  person  filling  it  being  removeable  in  the  same  way 
as  an  officer  of  a  corporation  created  by  a  charter,  there  can  be  no 
doubt  that  an  information  would  lie,  and  the  circumstance  that  the 
crown  has  enacted  that  there  should  be  such  an  office,  with  the  con- 
sent of  the  two  other  branches  of  the  legislature,  has  been  shown 
to  make  no  difi'erence. 

We  think  for  these  reasons  that  the  nature  of  the  office  held  bv 
the  plaintifif  in  error  was  such  for  which  an  information  in  the  nature 
of  a  quo  warranto  mav  be  sustained,  and  that  the  judgment  there- 
on is  not  erroneous. 

The  judgment  was  affirmed  without  costs. 

For    an    interestinsr    commentary    on    the    enrlv    history    of    the    writ    and 
its  abuses,  see   People  v.   Bristol,  etc..  Tpk.   Co..   2^  We'i^l.    CN.   Y  ")    2-'2 
Origin  and  History.— 2  Reeves'  History  220:  Crabhes'  History  of  Engbsh 


254  'fllE  STATE  V.   THE  WEST  WISCONSIN   R.MLWAY  CO.  §    I 

Law    174:    Comyn's    Digest,    Quo    Warranto;    High,    Ex.    Leg.    Remedies, 
section  591  ff. 


3.     The  ancient  ''writ"  and  modern  information. 

"It  is  somewhat  strange  that  the  ancient  and  modern  forms  (of 
the  writ  of  quo  warranto)  sliould  ever  have  been  confounded,  since 
there  is  really  no  more  legal  identity  between  the  writ  and  the  infor- 
mation that  between  any  of  the  several  other  common  law  actions 
which  took  their  distinctive  names  from  the  original  process  issuing 
out  of  the  high  court  of  chancery,  by  which  they  were  commenced 
and  the  petition  of  other  writing  by  which  courts  are  set  in  motion 
in  any  case  where  an  ordinary  or  extraordinary  remedy  is  sought." 
2  Spelling  Inj.  and  Ex.  Leg.  Rem.  §  1769. 


THE   STATE   v.   THE   WEST   WISCONSIN   RAILWAY 

COMPANY. 

1874.     Supreme  Court  of  Wisconsin.     34  Wis.  197. 

(Action  brought  by  information  in  the  nature  of  quo  warranto, 
exhibited  by  the  attorney  general  on  leave  of  the  court  to  have  a  for- 
feiture of  the  defendant  company's  charter  declared  and  the  corpo- 
ration dissolved.  Defendant  demurred  to  the  complaint  on  the 
ground  (among  others)  that  the  court  had  no  jurisdiction,  since 
the  constitution  of  W^isconsin  in  giving  the  court  jurisdiction  in 
"writs  of  quo  zvarranto"  thereby  conferred  no  power  to  entertain 
informations  in  the  nature  of  quo  warranto.) 

Dixon,  C.  J.  The  only  point  urged  in  support  of  the  demurrer 
and  the  only  question  to  be  considered,  is  that  pertaining  to  the 
jurisdiction  of  the  court.  The  learned  counsel  for  the  defendant 
urges  and  argues  very  ingeniously,  and  Avith  an  industrious  presen- 
tation of  authorities,  to  show  that  this  court  has  no  jurisdiction  of 
ihe  action  when  the  purpose  is  to  vacate  the  charter  or  annul  the 
existence  of  a  private  moneyed  or  commercial  corporation.  It 
seems  that  the  argument  is  one  of  the  kind  that  refutes  itself  by  prov- 
ing too  much.  The  position  of  counsel  fairly  stated  is,  that  section 
3,  article  7  of  the  constitution  confers  ui:)on  this  court  jurisdiction 
only  of  those  cases  which  in  ancient  times  were  remediable  by  the 
writ  f)f  quo  zvarranto  and  not  of  those  to  which  the  information  in 
the  nature  of  a  quo  zvarranto  had  licen  applied  after  the  writ  had 
fallen  into  fUsnsc.  This  is  in  direct  conflict  with  the  decisions  of 
this  court  in  at  least  three  cases,  in  which  substantially  the  same 
position  was  taken  and  directly  overruled.  Attorney  General  v. 
P.losson,  I  Wis.  317:  Attomcv  Ccneral  v.  T.arstow.  4  Wis.  567: 
State  v.  Mcpsmorc,  14  Wis.  115.    Piul  In  proceed  with  the  argument 


§  I  QUO  WARRANTO,  IN  GENERAL.  255 

of  counsel,  his  view  is,  that  as  the  writ  of  quo  zvarranto  had  never 
been  used  to  vacate  the  charter  or  annul  the  existence  of  a  private 
moneyed  or  commercial  corporation,  because  no  such  corporation 
had  ever  existed  before  the  time  the  writ  fell  into  disuse  or  was 
superseded  by  the  information  in  the  nature  of  quo  zvarranto,  there- 
fore this  court  has  no  jurisdiction  of  the  information  in  such  case, 
it  being  one  beyond  the  purview  of  the  constitution  or  grant  of 
power  contained  in  it.  Counsel  argues  that  although  the  proceeding 
in  the  nature  of  the  information  may  be  adopted,  or  that  by  civil 
action  as  a  substitute,  yet  that  the  class  or  classes  of  cases  over 
which  jurisdiction  is  conferred  upon  this  court  are  limited  to  such  as 
were  the  proper  subjects  of  the  writ  of  quo  ivarranto  at  the  time 
that  writ  ceased  to  be  used  and  the  information  took  the  place  of  it. 
The  argument  is  founded  altogether  upon  the  use  of  the  words 
"writ  of  quo  warranto"  in  the  constitution,  instead  of  the  words 
"information  in  the  nature  of  quo  warranto"  and,  if  correct,  would 
take  us  back  for  a  period  of  five  hundred  years  or  thereabouts  to 
ascertain  the  class  or  classes  of  cases  or  particular  subjects  over 
which  jurisdiction  was  given  or  intended  by  the  clause  of  the  con- 
stitution under  consideration.  It  requires  but  a  brief  study  of  the 
history  of  this  branch  of  the  English  Law  to  show  the  burden  as- 
sumed by  the  learned  counsel  were  he  to  attempt  to  point  out  and 
fix  the  limits  of  the  jurisdiction  thus  conferred  upon  the  court ;  or 
to  show  the  difficulties  by  which  the  court  would  be  surrounded  if 
it  were  compelled  to  solve  the  question  and  determine  the  extent  of 
its  own  powers  upon  any  such  view  or  construction  of  the  cdn- 
stitutional  provision.  It  will  be  found  that  the  whole  subject  is  so 
veiled  and  hidden  in  the  mists  and  clouds  of  antiquity  that  few 
courts  or  authors  ever  essay  to  give  any  explanation  of  it,  and  that 
no  living  lawyer  or  student,  however  versed  in  ancient  law  or  anti- 
quarian in  his  legal  pursuits  and  studies,  would  be  competent  to 
unfold  the  problem  or  clear  up  the  doubts  and  uncertainties  by  which 
it  is  on  all  sides  beset.  In  the  first  place  it  will  be  learned  that  it 
is  a  point  beyond  the  power  of  human  reach  or  effort,  to  ascertain 
the  time  when  the  writ  of  quo  zvarranto  fell  into  disuse  and  the  in- 
formation became  a  substitute  for  it  in  all  cases.  It  can  only  be 
known  that  both  are  common  law  proceedings  and  were  in  use  at 
the  same  time,  probably  as  early  and  maybe  much  earlier  than  the 
thirteenth  century.  Most  writers  are  entirely  silent  upon  the  sub- 
ject, regarding  it  as  one  respecting  which  elucidation  is  impossible 
or  impracticable.  The  only  author  whose  works  have  come  under 
our  observation  and  who  attempts  any  explanation  of  it,  is  Mr. 
Tancred,  whose  learned  and  instructive  treatise  on  the  Law  of  Qjto 
Warranto  was  published  in  London  in  1830.  Tn  the  introduction  to 
his  treatise,  p.  XVl,  after  having  quoted  from  Bracton,  ch.  19,  "On 
Eyres  and  Franchises",  and  having  shown  the  three  classes  of  peo- 
ple holding  franchises  liable  to  be  proceeded  against,  and  the  three 


256  THE  STATE  V.  THE  WEST   WISCONSIN   RAILWAY  CO.  §     I 

modes  of  inquiry  to  be  pursued  respecting  them  before  the  justices 
in  the  court  of  eyre,  the  author  says  of  the  third  class,  that  they 
"were  those  who  had  not  made  claim,  and  who  had  been  presented 
as  holding  franchises  by  the  inquest  of  their  bailiwick.  In  this  last 
mode  zee  seem  to  diseover  the  origin  of  information  in  the  nature  of 
a  quo  zvvrranto.  The  use  of  the  presentment  in  eyre  was  to  bring 
under  the  legal  cognizance  of  the  justices  the  fact  that  a  franchise 
not  claimed  was  held  by  an  individual  within  their  jurisdiction;  the 
same  is  the  office  of  the  presentment,  or  indictment  or  information 
in  th^  court  of  King's  Bench."  The  remarks  of  the  author  and  the 
nature  of  the  proceedings  are  explained  by  the  context,  and  the 
whole  subject,  as  well  as  the  causes  which  led  to  the  enactment  of 
the  statute  of  quo  zcarranto,  18  Edw.  I,  stat.  2,  read  by  counsel  on 
the  argument,  are.  made  quite  intelligible  in  Reeve's  History  of 
English  Law,  by  Finlason,  Vol.  II,  pp.  126-129,  ^"cl  ^"ol-  I.  P-  4^6 
and  following.     See  also  Crabbe's  History  of  the  English  Law,  pp. 

174-5- 

And  again  at  page  18.  Mr.  Tancred  says  that  "the  power  of  the 

attorney  general,  and  of  his  deputy,  the  master  of  the  crown  office, 
in  respect  to  the  filing  of  informations  in  the  nature  of  quo  zvar- 
ranto,  equally  with  their  powers  of  filing  informations  in  misde- 
meanors in  general,  are  derived  from  the  common  law."  And  at 
page  15,  speaking  of  the  erroneous  impression  that  the  statute  of 
9  Anne  (A.  D.  i7ii),  c.  20,  originally  conferred  power  upon  the 
coroner  to  file  such  informations,  the  author  observes : — "The  rec- 
ords of  the  crown  office  leave  no  room  to  doubt,  that  informations 
were  filed  by  the  coroner  anterior  to  that  statute,  even  in  cases  di- 
rectly within  its  provisions,  which  clearly  shows  that  the  latter  stat- 
ute did  not  first  introduce  these  informations,  but  only  made  some 
regulations  with  respect  to  the  prosecution  of  them.  The  act  of  the 
9th  .of  Anne  extends  only  to  the  cases  of  individuals  usurping  offices 
or  franchises  in  corporations,  when  the  right  of  the  body  to  act  as  a 
corporation  is  acknowledged ;  an  information  against  the  whole 
corj)oration  as  a  body,  to  show  by  what  authority-  they  claim  to  be  a 
c(.r])oration,  can  only  be  brought  li>-  and  in  the  name  of  the  attorney 
general. 

And  the  same  writer's  remarks  u])on  the  statute,  18  Edw.  I. 
passed  in  the  year  1290,  are  so  illustrati\'e  of  Ihe  hopelessness  of  the 
mission  upon  which  the  learned  counsel  would  send  the  court  in 
search  of  its  jurisfliction  imder  the  constitution,  that  we  are  dis- 
posed to  transcribe  tliem  at  length  as  the  best  comment  which  can 
he  made.  The  learned  counsel  liimself  only  suggests  doul)ts  and 
sus|)icions  respecting  the  jurisdiction,  without  pursuing  the  intjuiry 
or  pausing  to  assist  the  court  nut  of  the  tangled  web  of  antiquated 
precedents  and  distinctions  into  which  il  would  inevitably  be  drawn 
by  adopting  his  views,  it  is  incumbent  on  counsel  or  court  ac- 
cepting surli  conclusion,  to  jwiint  out  at  lc;ist  with  some  apiiroacli  to 


§  I  QUO  WARRANTO,  IN  GENERAL.  25/ 

clearness  and  precision  the  jurisdiction  which  the  court  has,  or  the 
class  or  classes  of  cases  of  which  it  will  take  cognizance.  It  is  not 
enough  under  such  circumstances  to  say  that  the  case  at  bar  is  not 
one  which  was  remediable  by  the  writ  of  quo  warranto,  or  to  which 
that  remedy  was  applied  in  the  reign  of  Edward  I.  Some  regard 
must  be  paid  to  future  cases,  and  to  the  condition  into  which 
the  court  shall  find  itself  when  they  do  arise,  respecting  the  all- 
important  question  of  jurisdiction.  It  is  not  enough  that  the  court 
is  able  to  say  that  there  existed  no  banking,  insurance  or  railway 
corporations  in  England  during  the  thirteenth  and  fourteenth  cen- 
turies ;  but  the  court  is,  or  would  be  on  the  theory  of  counsel,  re- 
quired to  go  farther,  and  determine  precisely  what  rights,  privileges, 
franchises  and  liberties,  corporate  or  otherwise,  were  examinable, 
and  could  be  adjudicated  on  the  writ  at  that  distant  period.  But  to 
return  to  our  author  and  his  remarks,  he  says :  "By  the  last  clause 
of  the  Statiitum  de  Quo  Warranto  Novum,  i8  Edw.  I,  the  king 
with  a  view  to  spare  the  costs  and  expenses  of  the  people  of  his 
realm,  granted  'that  pleas  of  quo  warranto  should  from  thenceforth 
be  pleaded  and  determined  in  the  eyres  of  the  justices ;  and  that  the 
pleas  then  depending  should  be  readjourned  into  their  own  particu- 
lar shires  until  the  coming  of  the  justices  into  those  parts."  The 
precise  period  of  the  institution  or  cessation  of  the  eyres  seems  un- 
known. Lord  Coke  charges  with  error  in  fonte  et  in  Hue  those  who 
supposed  that  Henry  II  did  first  institute  the  justices  in 
eyre ;  or  that  they  ceased  in  the  time  of  Edward  III.  He 
ascribes  to  them  an  indefinite  antiquity  of  origin  and  shows  that 
they  ceased  not  at  the  time  stated ;  for  that  after  the  reign  of  Ed- 
ward the  Third,  they  are  mentioned  as  well  known,  and  the  institu- 
tion as  existing  in  practice ;  for  it  was  enacted  by  act  of  Parliament 
(in  respect  of  the  troubles  and  foreign  affairs)  that  no  eyres  should 
be  holden  for  two  years,  and  at  a  later  period,  in  i6  R.  II  (1393) 
that  no  eyre  should  be  holden  until  the  next  parliament.  One  prob- 
able reason  why  it  is  difficult  to  ascertain  the  exact  period  of  the 
extinction  of  the  eyre,  is  that  its  decline  was  gradual ;  and  the  cause 
of  that  decline  seems  reasonably  referred,  by  the  same  author,  to 
the  establishment  of  justices  of  assize ;  for,  as  their  power,  by  many 
acts  of  parliament,  and  the  extent  of  the  numerous  commissions 
with  which  they  are  entrusted,  increased,  so  that  of  the  justices 
itinerant  vanished  away.  Whenever  the  circuits  of  the  justices  in 
eyre  ceased,  the  above  provisions  in  the  statute  of  18  Edw.  I,  neces- 
sarily lost  its  effect  also;  for  with  justices  in  eyre  this  branch  lived, 
and  with  them  it  died.  The  writ  of  quo  warranto,  therefore,  in  the 
same  manner  as  before  the  passing  of  the  statute,  became  return- 
able before  the  King's  Bench,  and  other  courts  at  Westminster ;  and 
the  same  delays  and  expensive  proceedings  which  had  led  to 
the  enactment  of  the  statute  of  Edward   1,  were,  it  may  be  pre- 


258  THE   STATE   V.    THE   WEST    WISCONSIN    RAILWAY    CO  §    I 

sumed,  again  experienced.  Whether  such  considerations,  or  the 
conclusive  character  of  the  judgment  which  was  final  even  against 
the  crown  occasioned  the  disuse  of  the  proceedings  upon  the  writ 
of  quo  warranto,  and  led  to  the  substitution  of  that  which  has  since 
prevailed,  can  nozv  be  only  matter  of  conjecture.  By  abandoning 
the  civil  process  and  its  long  train  of  dilatory  steps,  and  resorting 
to  the  criminal  form  of  an  information,  a  more  expeditious  decision 
of  the  suit  was  secured;  and  as  the  investigation,  when  the  pro- 
ceedings had  assumed  a  criminal  character,  took  place  in  the  coun- 
tv  where  the  franchises  were  situated,  the  object  which  the  legisla- 
ture had  formerly  in  view  was  indirectly  obtained.  Whatever  the 
immediate  cause  of  the  change,  and  whenever  it  was  brought  about, 
the  information  zvas  made  and  has  been  found  to  answer  all  the  pur- 
po  ivhich  zuere  effected  by  the  proceedings  under  the  old  writ  be- 
fore the  eyre." 

And  the  observations  of  Lord  Coke,  2  Inst.  498,  title,  Statutum  de 
Quo  Warranto,  referred  to  by  the  author  and  in  part  quoted,  are 
useful  as  revealing  to  some  extent  the  darkness  which  surrounds 
the  question.  He  says,  "As  to  the  second  point,  that  justices  in 
eyre  should  cease  in  the  raigne  of  Edward  III,  they  have  not  onely 
erred  m  fontc  but  in  fine  also,  for  they  ceased  not  in  the  raigne 
of  King  Edward  III,  for  it  is  enacted  by  act  of  Parliament  after 
that  king's  raigne  (in  respect  of  the  troubles  and  foreigne  affaires) 
that  no  eyres  should  be  holden  for  two  yeers ;  and  after  16  R.  2,  that 
no  eyre  should  be  holden  until  the  next  parliament ;  but  thus  much 
in  a  case  so  evident  shall  suffice.  We  have  added  thus  much  not  of 
curiosity  nor  of  a  spirit  of  contradiction,  but  for  two  respects:  the 
one,  that  when  our  historians  do  meddle  with  any  legall  point,  or 
matter  concerning  the  law,  we  would  advise  them  that  they  would, 
before  they  write,  consult  with  those  that  be  learned  and  apprised 
in  the  laws  of  this  realm  ;  the  other,  that  truth  might  be  manifested 
and  prevail." 

Now  if  so  great  a  luminary  of  the  law  and  student  and  expounder 
of  the  ancient  institutions  of  this  country  as  Lord  Coke,  who  wrote 
upwards  of  two  hundred  and  fifty  years  ago,  was  in  doubt  and 
could  not  determine  when  the  justices  in  eyre  ceased,  and  conse- 
quently when  the  writ  of  quo  warranto  fell  into  disuse  (for  we  are 
informed  that  the  writ  was  used  only  through  the  continuance  of 
that  institution),  how  is  it  possible  for  any  court  or  lawyer  to  de- 
termine the  same  question  at  the  present  day?  And  if  that  ques- 
tion cannot  be  determined,  how  is  it  possible  to  determine  what 
pleas  of  quo  zvarranto,  or  franchises  or  liberties,  were  cognizable 
under  the  writ  at  the  time  it  ceased  to  be  used?  We  might  stop 
here,  and  in  the  words  of  Lord  Coke  say : — "but  thus  much  in  a  case 
so  evident  shall  suffice."  It  is  a  manifestly  endless  as  well  as  fruit- 
less pilgrimage  in  which  counsel  would  engage  the  court;  and  the 


§    1  QUO   WARRANTO,   IN   GENERAL.  259 

design  of  this  investigation,  since  we  have  come  to  some  preception 
and  knowledge  of  the  subject,  has  been,  "not  to  let  the  light  in,  but 
the  darkness  out" — to  make  the  darkness  visible. 

To  accept  the  views  of  the  counsel  would. therefore  be  to  say  that 
this  court  has  no  definite  or  ascertainable  jurisdiction  under  the 
grant  of  power  contained  in  the  constitution.  The  argument  dis- 
proves itself,  therefore,  by  proving  too  much ;  and  it  would  be  better, 
undoubtedly,  to  adopt  the  views  advocated  by  counsel  in  the  earlier 
cases  in  this  court,  namely,  that  the  constitution  reserved  only  the 
power  to  issue  the  ancient  writ  of  qiio  ivarranto,  which  as  we  have 
seen  was  a  civil  writ  at  the  suit  of  the  crown,  and  ran  for  lands  and 
tenements  as  well  as  franchises  and  liberties,  and  in  some  cases  was 
a  mere  action  for  a  discovery,  and  was  commenced  by  proclama- 
tion as  well  as  by  service  of  process,  and  which  had  been  obsolete 
and  unknown  in  the  English  courts  for  nearly  four  hundred  years 
before  the  constitution  was  framed.  This  would  dispose  of  the 
whole  question  by  showing  that  no  jurisdiction  could  be  exercised ; 
for  no  lawyer  probably  could  prepare  the  writ  and  conduct  the  pro- 
ceedings to  a  successful  termination  without  personal  access  to  the 
ancient  entries  in  the  crown  office,  which  could  not  well  be  had. 

The  futility  and  unreasonableness  of  all  such  interpretations  of 
the  constitution  are  apparent.  It  is  as  impossible  to  believe  that  the 
framers  of  the  constitution  were  looking  back  over  the  period  of 
three  or  four  hundred  years  into  the  middle  ages,  desiring  to  give 
this  court  jurisdiction,  and  only  such,  as  was  then  exercised  in  vir- 
tue of  the  writ  of  quo  zvarranto,  as  it  is  that  they  intended  to  confine 
the  court  to  that  useless  and  antiquated  process.  The  framers  of 
the  constitution  were  practical  men,  and  w^ere  aiming  at  practical 
and  useful  results.  They  used  the  words  "writ  of  quo  warranto''' 
just  as  they  had  been  used  in  common  parlance,  and  by  courts,  law- 
yers, and  writers  for  hundreds  of  years,  as  synonymous  with  "infor- 
mation in  the  nature  of  quo  zvarrcnto,"  which  had  for  so  long  been 
the  complete  and  unqualified  substitute  for  the  writ.  "This  (the 
information)  is  properly  a  criminal  method  of  prosecution,  as  well 
to  punish  the  usurper  by  a  fine  for  the  usurpation  of  the  franchise 
as  to  oust  him,  or  seize  it  for  the  crown ;  but  hath  long  been  applied 
to  the  purposes  of  trying  the  civil  right,  seizing  the  franchise,  or 
ousting  the  wrongful  possessor;  the  fine  being  nominal  only."  3 
Blackstone  Comm.,  263.  By  the  statute  of  this  state  the  fine  may  be 
something  more  than  nominal  only.  Rev.  Stat.,  ch.  160,  §  15:2  Tav. 
Stats.,  1 81 2,  §  21.  And  in  the  early  and  leading  case  in  New  York, 
The  People  v.  The  Utica  Insurance  Company,  decided  in  1818,  and 
reported  15  Johns.  (N.  Y.  )  358,  in  which  the  remedy  by  information 
was  applied  to  one  of  these  modem  private  moneyed  or  commercial 
corporations,  we  find  Judge  Spencer  using  the  following  language : 
"An  information  in  the  nature  of  a  quo  warranto  is  a  substitute  for 


26o  THE   STATE   V.    THE   WEST    WISCONSIN    RAILWAY    CO.  §     I 

that  ancient  writ  which  has  fallen  into  disuse;  and  the  information 
which  has  superseded  the  old  writ  is  defined  to  be  a  criminal  method 
of  prosecution,  as  well  to  punish  the  usurper  for  the  usurpation  of 
the  franchise  by  a  fine.. as  to  oust  him,  and  seize  it  for  the  crown. 
It  has  for  a  long  time  been  applied  to  the  mere  purpose  of  trying  the 
civil  right,  seizing  the  franchise  or  ousting  the  wrongful  possessor, 
the  fine  being  nominal  only.  2  Inst.  pi.  12;  3  Burr.  (K.  B.)  1817;  4 
T.  R.  (K.  B.)  381  ;  I  Bulst.  55."  Now  it  was  with  a  view  to  this 
w^ell  known  jurisdiction  then  and  long  before  only  exercised  in  the 
proceedings  by  information,  that  the  framers  of  the  constitution  gave 
or  reserved  the  power  of  this  court,  using  for  convenience  and 
brevity  merely  the  words  "urit  of  quo  zvarranto"  just  as  these  words 
were  used  by  Chancellor  Kent  in  Attorney  General  v.  Utica  Ins, 
Co.,  2  Johns.  (N.  Y.)  Ch.  371,  376,  and  as  they  had  been  used  by 
other  courts  and  waiters  time  without  number,  and  as  they  are  still 
even  used  in  our  statute.  Rev.  Stat.,  ch.  160,  §  i ;  2  Tay.  Stats.,  1807, 
§  I,  as  meaning  the  same  thing  and  intended  to  convey  the  same  gen- 
eral idea  as  the  words  "information  in  the  nature  of  quo  zvarranto." 

We  are  aware  that  a  difl:'erent  interpretation  has  been  given  to  a 
like  clause  in  the  constitution  of  the  state  of  Arkansas  and  also  the 
state  of  Missouri.  State  v.  Ashley,  i  Ark.  279;  s.  c.  id.  513.  See 
also  State  v.  Real  Estate  Bank,  5  Ark.  595 ;  State  v.  Johnson,  26  id. 
281 ;  State  v.  Ins.  Co.,  8  Mo.  330;  State  v.  Stone,  25  Mo.  555.  The 
earlier  cases  in  Missouri  held  to  the  rule  which  we  adopt.  State  v. 
Merry,  3  Mo.  278 ;  State  v.  McBride,  4  id.  303.  And  such  we  think 
is  almost  the  universal  American  rule.  See  State  v.  Gleason,  12 
Fla.  190.  Of  the  cases  still  adhering  to  the  distinction  between  the 
writ  and  the  information,  that  first  above  cited  is  the  best  reasoned 
and  most  elaborate ;  but  after  a  careful  perusal  of  the  arguments 
and  the  opinion,  it  seems  to  us  that  counsel  for  the  motion,  which 
was  overruled,  were  sustained  by  much  the  stronger  reasoning.  In 
Pennsylvania,  it  appears,  that  there  is  a  statutory  writ  of  quo  zvar- 
ranto in  manv  respects  resembling  the  ancient  one.  Commonwealth 
v.  liurrel,  7  Pa.  St.  34.     *     *     * 

By  the  Court. — Demurrer  overruled. 

Tn  accord. — .State  v.  Leathcrman.  33  Ark.  81  ;  People  v.  Keeling,  4  Colo. 
129;  State  V.  Anderson,  26  Fla.  240;  Capital  City,  etc.,  Co.  v.  State,  T05  Ala. 
4(/);   State   v.    Merrv.   3    Mo.   27<S. 

Contra:  State  v.  Vail,  53  Mo.  97;  State  v.  Stone,  25  Mo.  555;  State  v. 
St.    Louis,  etc.,   Ins.   Co.,  8   Mo.   330. 

In  tlic  cas"  last  cited  the  Missouri  Court  distinguishes  carefully  between 
the  "writ  of  quo  zvarranto,"  which  issues  as  a  matter  of  right  and  the 
"information,"  leave  to  file  which,  rests  wholly  in  the  discretion  of  the 
court. 


§    I  QUO   WARRANTO,   IN   GENERAL.  26l 

3.     Writ  criminal  in  form  but  civil  in  nature. 

THE  COMMONWEALTH  v.  McCLOSKEY  et  al. 
1830.     Supreme  Court  of  Pennsylvania.     2  Rawle   (Pa.)   369. 

(Only  that  portion  of  the  opinion  of  Gibson,  C.  J.,  dealing  with 
the  point  in  question  is  here  given.) 

Gibson^  C.  J. — This  species  of  information  was  freely  used  by 
the  crown  in  disfranchising  most  of  the  corporate  towns  of  Eng- 
land, previous  to  the  statute  of  9  Anne  8.  20,  which  gave  no  new 
remedy,  but  enlarged  an  existing  one.  by  authorizing  it,  at  the  in- 
stance of  an  individual,  and  allowing  costs  to  the  relator  or  re- 
spondent, according  to  the  event.  The  circumstance  of  that  statute 
not  being  in  force  here,  furnishes  no  argument  against  the  informa- 
tion as  an  existing  remedy.  It  is,  however,  so  far  modified  by 
usage,  in  analogy  to  the  statute,  as  to  be  grantable  at  the  relation  of 
an  individual ;  but  in  every  other  respect,  it  has  been  considered  to 
be  in  force  here,  as  the  common  law.  It  is  declared  in  the  constitu- 
tion, art.  9,  §  loth,  "That  no  person  shall  for  an  indictable  offense 
be  proceeded  against  criminally  by  information,"  except  in  certain 
specified  cases.  But  every  information  is  in  form,  a  criminal  pro- 
ceeding ;  and  the  framers  of  the  constitution  were  guilty  of  ple- 
onasm, unless  they  meant  to  assert,  that  there  are  cases  in  which  it 
may  be  used  substantially  as  a  civil  remedy.  Now,  it  so  happens, 
that  the  best  of  the  elementary  authors  has  asserted  the  same  thing. 
As  a  method  of  criminal  prosecution,  the  information  in  the  nature 
of  a  quo  warranto,  has  long  fallen  into  disuse,  the  fine  being  merely 
nominal,  and  the  effect  of  the  judgment  to  oust  the  intruder;  and 
thus  restricted,  it  is  now  used  to  try  title  to  a  franchise.  3  Comm., 
263.  In  fact,  it  contains  all  that  is  valuable  in  the  ancient  writ  of 
quo  warranto;  to  which  with  its  uncouth  forms  and  interminable 
proceedings  and  pleadings,  the  necessity  which  there  often  is,  of 
giving  redress  in  some  shape,  would  compel  us  to  return.  Can  it  be 
doubted  then,  that  the  convention,  containing  as  it  did,  many  of  the 
ablest  lawyers  in  the  state,  had  particularly  in  view  the  preservation 
of  this  proceeding  as  a  civil  remedy?  Even  were  that  doubtful,  yet 
the  point  has  been  settled  by  contemporaneous  construction  and  long 
practice.  The  Commonwealth  v.  Wray,  3  Dall.  (Pa.)  490,  in  which 
it  was  expressly  ruled,  was  within  nine  years  from  the  adoption  of 
the  constitution ;  since  when,  it  has  been  followed  as  a  precedent, 
by  different  judges,  through  six  successive  cases,  in  which  the  prin- 
ciple was  reasserted  without  the  expression  of  a  doubt,  either  on  the 
bench  or  at  the  bar ;  which  ought,  one  would  think,  to  put  the  matter 
at  rest.  After  thirty  years'  practice,  to  question  a  train  of  authori- 
ties such  as  these,  tends  to  shake  all  confidence  in  the  stability  of 


262         NEILL  DONNELLY   V.   THE  PEOPLE  OF   STATE  OF   ILLINOIS.  §     I 

judicial  decision,  and  leave  the  law  itself  in  a  state  of  distressing  un- 
certainty.    *     *     * 

In  accord.— State  v.  Ashley,  i  Ark.  279;  State  v.  Price,  50  Ala.  568; 
Robertson  v.  State,  109  Ind.  79;  State  v.  Campbell,  120  Mo.  396;  State  v. 
DeGrcss,  53  Tex.  387;  Commonwealth  v.  Birchett,  2  Va.  Cas.  51;  Attorney- 
General  V.  Barstow,  4  Wis.  567.    . 

Contra. 

XEILL  DONNELLY,  Appellant,  v.  THE  PEOPLE  OF  THE 

STATE  OF  ILLINOIS  ex  rel.  DERRICK  C.  BUSH, 

Appellee. 

1850.     Supreme  Court  of  Illinois,     ii  111.  552, 

This  was  a  proceeding-  by  quo  zvarranto,  instituted  against  the 
appellant,  in  the  McHenry  Circuit  Court,  on  the  relation  of  Bush, 
charging  that  the  appellant  had  usurped  the  office  of  sheriff  of  Mc- 
Henry county,  and  enjoyed  the  privileges  and  franchises  thereof; 
assigning  as  a  special  cause,  that  he  had  omitted,  when  taking  the 
oath  of  office,  to  take  the  anti-duelling  oath  prescribed  by  the  con- 
stitution. 

The  relation  commenced :—"  And  now  comes  Alonzo  Piatt,  state's 
attorney  for  the  eleventh  judicial  district  of  the  state  of  Illinois, 
and  on  the  relation  of  Derrick  C.  Bush  who  sues  for  the  people  in 
this  behalf,  and  for  the  said  people  gives  the  court  here  to  under- 
stand and  be  informed,"  etc.,  and  concluded  as  follows : — that  ap- 
])ellant  intrudes  into  the  office  "contrary  to  law,  and  to  the  damage 
and  prejudice  of  the  said  people  of  the  state  of  Illinois ;  whereupon 
the  said  attorney  of  the  people  prays  the  advice  of  the  court,  etc." 

The  information  was  sustained  by  the  Circuit  Court,  TIkn'derson, 
Judge,  presiding.  There  were  several  proceedings  in  the  court 
below,  which  are  not  noticed  here,  inasmuch  as  they  were  not  nec- 
essary to  an  understanding  of  the  points  decided. 

Opinion  by  Mr.  Justice  Caton  : — 

This  proceeding  is  a  prosecution,  within  the  meaning  of  §  26,  art. 
5  of  the  constitution,  and  should  have  been  carried  on,  and  should 
have  concluded,  as  is  there  required.  That  section  provides :  "All 
prosecutions  shall  l>e  carried  on  "in  the  name  and  by  the  authority 
of  the  pco])le  of  the  state  of  Illinois",  and  conclude,  "against  the 
peace  and  dignity  of  the  same." 

Ill  its  broadest  sense  the  word  "prosecutions"  would  embrace  all 
proceedings  in  the  courts  of  justice,  or  even  elsewhere,  for  the  pro- 
tcctif)n  or  enforcement  of  a  right  or  the  punishment  of  a  wrong. 
whether  of  a  public  or  a  private  character.  The  word  as  here  used, 
however,  has  not  that  comprehensive  meaning  but  signifies  prosecu- 
tions   of    a    public    f)r    criniinrd    character.     When    used    in    this 


§    I  QUO   WARRANTO,  IN  GENERAL.  263 

sense  it  means  the  mode  of  the  formal  accusation  of  offenders,  and 
this  may  be  by  presentment,  information  or  indictment.  4  Black- 
stone  Comm.,  301  ;  Webster  Diet.   ("Prosecution"). 

This  proceeding  is  a  substitute  for  the  ancient  writ  of  quo  ivar- 
ranto,  but  it  is  none  the  less  a  mode  of  criminal  prosecution,  as  well 
to  punish  the  usurper,  for  the  usurpation  of  the  franchise,  as  to  oust 
him  from  its  enjoyment.  The  People  v.  Utica  Insurance  Company, 
15  Johns.  (N.  Y.)  358.  P)lackstone  says,  "This  is  properly  a  crim- 
inal method  of  prosecution,  as  well  to  punish  the  usurper  by  a  fine 
for  the  usurpation  of  a  franchise,  as  to  oust  him,  or  seize  it  for  the 
crown,  but  hath  long  been  applied  to  the  mere  purpose  of  trying 
the  civil  right,  seizing  the  franchise,  or  ousting  the  wrongful  pos- 
sessor ;  the  fine  being  nominal  only."  3  Blackstone  Comm.  263. 
Our  statute  of  quo  zcarranto  has  in  no  way  changed  the  criminal 
character  of  this  proceeding.  It  expressly  provides,  not  only  for 
judgment  of  ouster,  but  also  that  the  defendant  shall  be  punished 
for  the  usurpation  by  a  fine.  Rev.  Stat.,  ch.  86,  §  2.  The  criminal 
code  provides  for  the  punishment  of  the  same  ofifense  by  indictment. 
Rev.  Stat.,  ch.  30.  §  105.  A  prosecution  under  one  of  these  stat- 
utes would  necessarily  be  a  bar  to  any  proceeding  under  the  other. 
It  is  not  supposed  but  that  prosecutions  under  an  indictment  are 
within  the  provisions  of  the  constitution,  and  indictments  have  al- 
ways been  framed  in  conformity  to  it.  This  is  a  rule  of  pleading 
prescribed  by  the  constitution,  and  when  not  conformed  to,  the  in- 
dictment would  be  void.  When  the  constitution  says  that  prose- 
cutions shall  be  presented  or  carried  on  in  a  particular  mode  it  is 
equivalent  to  saying  that  they  shall  not  be  presented  or  carried  on  in 
any  different  wa}'.  This  is  not  only  a  criminal  prosecution  but  the 
rules  of  pleading,  applicable  to  indictments,  govern  it.  The  same 
certainty  and  technical  precision  are  required  in  both,  and  the  prin- 
cipal, if  not  the  only  difference,  between  them  is.  that  an  indictment 
is  presented  by  the  grand  jury,  on  their  oaths,  while  in  informations 
in  the  nature  of  quo  ivarraufo,  the  court  is  informed  of  the  facts  by 
the  state's  attorney.  In  treating  of  these  informations,  Serjeant 
Hawkins  says :  "An  information  differs  from  an  indictment  in  lit- 
tle more  than  this,  that  the  one  is  found  by  the  oaths  of  twelve  men, 
and  the  other  is  not  so  found,  but  is  only  the  allegation  of  the  officer 
who  exhibits  it.  Whatsoever  certainty  is  required  in  an  indictment, 
the  same  at  least,  is  necessary  in  an  information,  and  consequently 
all  the  material  parts  of  a  crime  must  be  precisely  found  in  the  one, 
so  must  they  be  precisely  alleged  in  the  other,  and  not  by  way  of 
argument  or  recital."    2  Hawkins  P.  C.  357,  §  4. 

If,  then,  an  indictment  must  be  carried  on  "in  the  name  and  by 
the  authority  of  the  people  of  the  State  of  Illinois",  and  must  con- 
clude, "against  the  peace  and  dignity  of  the  same,"  the  omission  of 
these  essential  words  in  an  information,  must  necessarilv  be  fatal. 


264  RAMSEY  V.   CARHART.  §    I 

The  Constitution  requires  them,  and  the  courts  cannot  dispense  with 
them.  The  information  being  thus  fatally  defective,  it  is  unneces- 
sary that  we  should  inquire  whether  the  plea  to  which  the  circuit 
court  sustained  a  demurrer,  was  good  or  not. 

The  judgment  is  reversed,  with  costs  against  the  relator. 

Judgment  reversed. 

In  accord. — Chesshire  v.  People.  116  111.  493;  Hay  v.  People,  59  III. 
94;   Wight  V.   People,   15  111.  417. 

In  California  the  information  is  treated  as  a  mixed  form  of  action,  hav- 
ing for  its  object  the  protection  of  private  and  the  enforcement  of  public 
rights.     People  v.   Gillespie,    i    Cal.   342. 

In  Idaho  the  tendency  seems  to  be  to  emphasize  the  criminal  features 
of  the  writ.     People  v.  Green,  i  Idaho,  235. 


4.     The  jurisdiction. 

In  this  country  the  jurisdiction  in  quo  zvarranto  is,  together  with 
other  extraordinary  jurisdiction,  conferred  usually  upon  the  courts 
by  the  state  constitutions ;  but  it  is  seldom  that  the  mode  of  proce- 
dure is  prescribed  either  by  statute  or  by  constitution.  The  courts, 
therefore,  are  forced  to  look  to  the  rules  and  principles  of  the  com- 
mon law,  governing  the  writ,  in  the  light  of  the  modifications  in- 
troduced by  the  Statute  of  Anne  and  the  changes  affected  by  our 
own  political  and  governmental  institutions,  for  the  method  of  pro- 
cedure and  more  especially  for  the  occasions  under  which  the  writ 
will  issue. 


5.     Not  granted  to  redress  purely  private  wrongs. 
RAMSEY  V.  CARHART. 
1871.     Stipreme  Court  of  Arkans.\s.     27  Ark.   13. 

McCt.ure,  C.  J.  The  only  question  presented  by  this  case,  is 
whether  a  qtio  -u'arranto  will  issue  on  the  relation  of  4  private  per- 
son. It  has  been  held  in  the  vState  v.  Ashley,  1  .\rk.  279,  (see  note 
in  Caldwell  v.  Bell  &  Graham,  6  Ark.  227,  and  State  v.  Williams,) 
that  the  writ  of  quo  warranto  would  only  issue  on  the  relation  of 
the  attorney  general,  in  the  name  of  the  state,  in  cases  where  the 
whole  commtmity  arc  interested,  and  would  not  be  granted  at  the 
instance  of  an  individual  for  the  determination  of  a  private  right. 

TIh-  counsel  for  the  appellant  ask:  "Will  anyone  say  that  the 
jurisrliction  of  this  court  depends  upon  the  breath  of  the  attorney 
general"?  and  in  response  to  the  question  .says  "God  forbid".  In  re- 
sponse to  the  query  propounded  by  counsel,  this  court  takes  occa- 


§     I  QUO   WARRANTO,   IN   GENERAL.  265 

sion  to  say,  that  the  jurisdiction  of  this  court  is  derived  from  and 
regulated  by  the  constitution  of  the  state,  but  it  is  for  the  attorney 
general  to  see  whether  the  offices  or  franchises  of  the  state  have 
been  usurped  ;  he  is  the  law  officer  of  the  government,  and  is  pre- 
sumed to  discharge  his  duty.  The  office,  in  controversy,  is  one 
created  by  the  constitution ;  it  is  a  grant  of  power  by  the  people ;  the 
attorney  general  is  their  highest  law  officer  and  so  long  as  the  people 
do  not  complain,  through  him  of  usurpation  of  an  office  or  franchise, 
it  is  but  fair  to  presume  that  no  usurpation  has  taken  place.  It  may 
be  asked,  if  this  be  true,  how  can  one,  entitled  to  an  office,  get  pos- 
session of  it,  if  quo  zvarranto  is  denied,  or  the  attorney  general  re- 
fuses to  discharge  his  sworn  duty?  Section  525  of  the  Civil  Code, 
declares  that  "Whenever  a  person  usurps  an  office  to  which  he  is 
not  entitled  by  law,  an  action,  by  proceedings  at  law,  may  be  insti- 
tuted against  him,  either  by  the  state,  or  the  person  entitled  to  the 
office."  This  section  furnishes  the  complainant  in  this  case,  with  a 
full  and  perfect  remedy  to  assert  and  maintain  his  right  to  the  of- 
fice he  claims,  and  neither  the  neglect  of  the  attorney  general,  nor 
a  denial  of  jurisdiction  in  this  court  in  any  manner,  interferes  with 
his  remedy. 

Quo  warranto  zvas  invented,  originally,  not  to  determine  which  of 
two  persons  were  entitled  to  an  office,  but  to  require  the  incumbent 
to  show  by  what  authority  he  was  exercising  or  attempting  to  exer- 
cise the  duties  of  an  office,  created  by  soTcreign  authority.  The 
issue  was  between  the  state  and  the  person  in  office;  and  not  betzveen 
the  persons  who  claimed  the  right  to  exercise  its  duties.  In  short, 
quo  warranto  is  the  writ  of  the  state,  and  only  issues  at  the  instance 
of  the  state.  It  was  not,  nor  is  it  now  designed  or  used  as  a  rem- 
edy at  law,  by  which  individuals  may  contest  the  right  to  an  office. 
The  legislature  has  provided  a  separate  remedy  for  the  determina- 
tion of  such  a  question,  and  the  parties  must  seek  the  remedies  pro- 
vided for  them,  instead  of  one  provided  for  the  state. 

The  writ  is  denied  and  the  cause  ordered  stricken  from  the  docket. 

Gregg,  J.,  dissenting. 


.--EOPLE  EX  REL.  KOERNER  v.  RIDGELY  et  al. 

1859.     Supreme  Court  of  Illinois.     21  111.  64. 

At  the  April  Term,  1857,  of  the  Sangamon  Circuit  Court,  the 
people  by  the  circuit  attorney,  upon  the  relation  of  Gustavus  Koer- 
ner,  George  T.  Brown,  and  Richard  Yates,  informed  the  court  that 
on  the  first  day  of  November,  A.  D.  1848,  by  virtue  of  the  act  en- 
titled, An  Act  for  finally  closing  the  affairs  of  the  State  Bank  of  Il- 
linois, approved  March  i,  1847,  ^^''^  governor  duly  appointed  Nich- 


266  PEOPLE  EX  REL.    KOERNER  V.   RIDGELY  ET  AL.  §    I 

olas  H.  Ridgely,  Uri  Manly  and  John  Calhoun,  trustees  to  take 
charge  of  the  assets  and  wind  up  the  affairs  of  the  State  Bank ;  that 
thev  entered  upon  the  trust  and  have  thenceforward  continued  to 
exercise  the  duties  and  franchises  thereof  to  the  present  time.  That 
on' the  i8th  day  of  February,  1857,  the  governor  of  the  state,  by  and 
with  the  advice  and  consent  of  the  senate,  duly  removed  said  Ridge- 
ly, Alanlv  and  Calhoun  from  said  trusteeship,  and  appointed  the  re- 
lators, but  that  Ridgely,  Manly  and  Calhoun  continue  to  hold  the 
books,  papers  and  assets  of  the  bank  and  exercise  the  franchises  of 
said  trust,  unlawfully  and  contrary  to  the  peace  and  dignity  of  the 
people. 

To  this  information  a  plea  was  filed,  giving  a  history  of  said  bank 
and  the  several  acts  passed  in  relation  thereto,  including  the  said  act 
for  winding  up  the  same,  also  setting  out  the  connection  of  the  said 
bank  with  the  state,  and  the  liquidation  and  adjustment  of  matters 
between  the  bank  and  the  state,  also  reciting  that  the  bank  had  con- 
veyed to  them  by  deed  all  of  the  assets  belonging  to  it,  and  that  by 
virtue  of  the  deed  the  assets  were  delivered  to  them ;  that  they  ac- 
cepted the  trust  and  were  acting  under  it ;  that  they  had  paid  the 
state  $50,000  in  its  bonds,  and  that  the  interests  of  the  state  in  the 
bank  had  been  released  to  said  trustees,  and  that  as  such  trvistees 
they  were  authorized  to  act  and  continued  to  act ;  that  they  were 
lawfully  in  possession,  and  that  they  be  allowed  to  continue,  etc. 

To  this  plea  there  was  a  demurrer  and  joinder.  By  agreement 
the  issue  was  decided  pro  forma  for  the  defendants,  and  an  appeal 
taken  to  this  court. 

Breese^  J.  An  information  in  the  nature  of  quo  zvarranto  is  un- 
derstood to  be  a  criminal  proceeding  (People  ex  rcl.  Bush  v.  Neill 
Donnelly,  11  111.  552),  and  can  only  be  resorted  to,  in  cases  in  which 
the  public,  in  theory  at  least,  have  some  interest.  We  think  an  in- 
stance cannot  be  found  where  it  has  been  allowed  against  persons 
for  assuming  a  franchise  of  a  mere  private  nature,  not  connected 
with  the  public,  its  interests,  or  its  government.  Rex  v.  Ogden,  21 
Eng.  C.  L.  R.  62. 

Onv  statute  on  this  subject  (Scates'  Comp.  224),  provides  sec- 
tion one,  "In  case  any  person  or  persons  shall  usurj),  intrude  into 
or  unlawfully  hold  or  execute  any  office  or  franchise,  it  shall  be 
lawful  for  the  attorney  general  or  the  circuit  attorney  of  the  proper 
circuit,  with  the  leave  of  any  circuit  court,  to  exhibit  to  such  court 
on  information  in  the  nature  of  quo  zvarranto  at  the  relation  of  any 
person  or  persons  desiring  to  sue  or  prosecute  the  same,"  etc.  The 
scconfl  section  authorizes  a  judgment  of  ouster  and  the  imposition 
of  a  fine  besides  the  costs.  The  statute  is  substantially  a  copy  of  the 
statiite  of  9  Anne,  ch.  20.  P.oth  arc  pointed  at  the  usurpation  of, 
intrusirm  into,  or  unlawfully  holding  and  executing  certain  offices. 
The  offices  are  sjiccified  in  the  Qth  Anne,  as  offices  and  franchises  in 


'^     I  OUO    VVAKRAXJO,   IN    GENERAL.  26/ 

corporations  and  boroughs ;  in  our  statute  they  are  not  specified  and 
that  seems  to  be  the  only  real  difference  between  them.  The  statute 
of  Anne  applies  only  to  corporate  offices,  and  the  franchises  of  a 
corporate  nature,  in  corporate  places. 

But  at  common  law,  before  this  statute  we  understand,  informa- 
tions were  filed  and  sustained  in  the  nature  of  quo  zvarranto,  in  cases 
not  relating  to  any  corporate  office  or  franchise  of  a  corporate  na- 
ture in  a  corporate  place,  as  in  cases  where  a  party  unlawfully  took 
upon  himself  to  act  in  any  public  capacity,  touching  the  rule  and 
government  of  any  place  in  England  or  Wales,  or  the  administration 
of  justice,  or  the  political  rights  of  third  persons. 

The  usual  object  of  an  information  of  this  nature,  is,  to  call  in 
question  the  defendant's  title  to  the  office  or  franchise  claimed  and 
exercised  by  him,  because  of  some  alleged  defect  therein,  as  for  in- 
stance, that  at  the  time  of  the  election  he  was  disqualified  to  be 
elected ;  or  that  the  election  itself  was  void  or  irregular ;  or  that  the 
defendant  was  not  duly  elected  or  not  duly  appointed ;  or  that  he  has 
not  been  duly  sworn  in,  or  otherwise  unlawfully  admitted;  or  that 
he  has  since  become  disqualified  and  yet  presumes  to  act.  A  de- 
fective title  is  understood  to  be,  and  is  in  contemplation  of  law,  the 
same  as  no  title  whatever,  and  a  person  exercising  an  office  or  a  fran- 
chise of  a  public  nature,  is  considered  as  a  mere  usurper  unless  he 
has  a  good  and  complete  title  in  every  respect.  This  court  has  de- 
cided that  the  people  are  not  required  to  show  anything.  The  entire 
on^s  is  on  the  defendant,  and  he  must  show  by  his  plea,  and  prove 
that  he  has  a  valid  title  to  the  office.  He  must  set  out  by  what  war- 
rant he  exercises  the  functions  of  the  office  and  must  show  good 
authority  for  so  doing,  or  the  people  will  be  entitled  to  judgment  of 
ouster.    Clark  v.  The  People  ex  rel.  Crane,  15  111.  217. 

The  information,  however,  must  allege  that  the  person  against 
whom  it  is  filed,  holds  and  executes  some  office  or  franchise,  de- 
scribing it,  so  that  it  may  be  seen  the  case  is  within  the  statute.  This 
information  contains  no  such  averment,  nor  anything  equivalent  to 
it.  The  allegation  is,  that  the  governor  appointed  the  defendants 
trustees,  to  take  charge  of  the  assets  and  wind  up  the  affairs  of  the 
State  Bank,  and  that  they,  then  and  there,  entered  upon  said  trust, 
and  thenceforward  have  continued  in  fact  to  execute  the  duties 
and  franchises  thereof  to  the  present  time."  It  is  then  averred  that 
the  governor  by  and  with  the  advice  and  consent  of  the  senate,  dulv 
removed  them  from  the  said  trusteeship  and  duly  appointed  the  re- 
lators "their  successors  in  said  trusteeship",  of  which  the  defend- 
ants had  notice ;  concluding  with  the  averment  that  the  defendants 
"continue  to  hold  the  books,  papers,  and  assets  of  said  bank  and  ex- 
ercise the  franchises  of  said  trust,  unlawfully,  and  contrary  to  the 
peace  and  dignity  of  the  people",  etc. 

There  is  no  distinct  averment  that  the  defendants  hold  or  execute 


268  PEOPLE  EX   REL.    KOERNER  V.   RIDGELY   ET  AL.  §     I 

any  office  or  franchise,  so  that  the  demurrer  to  the  defendant's  plea 
in  bar  might  well  have  been  carried  back  to  the  information,  for  it 
does  not  present  the  statute  offense  in  any  sufficiently  legal  or  tech- 
nical form.  People  ex  rel.  Gillenwater  v.  Mississippi,  etc.,  R.  Co., 
13  111.  66.  And  the  defendants,  for  the  same  reason,  might  have 
successfully  defended  against  the  information,  by  interposing  a  gen- 
eral demurrer,  for  admitting,  which  the  demurrer  would  do,  all  the 
allegations  to  be  true,  no  case  is  made  out  against  the  defendants. 
In  truth  the  affirmative  facts  that  they  were  appointed  by  the  gov- 
ernor, the  trustees  of  the  bank,  and  have  taken  upon  themselves  the 
execution  of  the  trust,  and  at  the  time  of  filing  the  information  were 
executing  the  trust,  make  a  case  for  the  defendants,  for  the  valid- 
itv  of  their  appointment  is  not  assailed. 

The  real  question  as  the  relators  have  made  it,  and  argued  it,  is, 
has  the  governor  the  power  to  remove  the  defendants  from  their 
trust?  It  is  contended  by  the  relators  that  the  governor  has  such 
power — that  although  they  are  called  trustees,  they  are  in  fact  pub- 
lic officers,  and  the  "trusteeship"  is  an  office  or  franchise  in  which 
the  public  have  an  interest,  and  its  incumbents  are  necessarily  under 
executive  control. 

We  will  not  question  that  the  power  of  removal  from  office  where 
the  tenure  is  not  defined  by  constitution  or  law  whence  the  appoint- 
ment originates,  resides  with  the  power  to  appoint,  and  were  this 
trust  confided  by  the  executive  to  the  defendants,  a  public  office,  we 
would  not  hesitate  to  accord  to  him  the  right  to  remove  him.  But 
is  it  an  office? 

An  office  is  deiined  to  he  a  right  to  exercise  a  public  fnnctiou  or 
employment,  and  to  take  the  fees  and  enwhunents  belonging  to  it, 
and  they  are  civil  and  military,  and  the  civil  are  divided  into  polit- 
ical, judicial  and  ministerial.  Of  the  former,  the  president  and  the 
governors  of  the  states,  heads  of  departments,  members  of  congress, 
of  the  legislatures,  etc.,  are  examples.  The  judicial  are  those  which 
relate  to  the  administration  of  justice,  and  cannot  be  exercised  by 
deputy.  The  ministerial  are  those  wherein  the  officer  has  no  power 
to  judge  of  the  matter  to  be  done,  but  must  act  in  obedience  to  the 
rirdcrs  of  a  superior,  and  the  duties  of  which  can  be  performed  by  a 
deputy.  All  offices  in  this  country  are  public.  Some  employments 
of  a  private  nature  are  considered  offices,  if  connected  v/ith  the  pub- 
lic, as  a  bank  or  railroad  president,  trea.surer  or  secretary  or  di- 
rector.   2  r>lackstone  Comm.  31  ;  3  Kent  Conim.  454. 

The  act  luidcr  which  the  defendants  were  appointed  does  not  de- 
clare the  trust  to  be  an  office,  nor  in  the  manner  of  their  appoint- 
ment was  it  considered  an  office.  It  has  none  of  the  indications  of 
an  r)ffire — no  tenure  is  prescribed — no  fees  or  emoluments  allowed, 
and  no  salary—  nor  is  there  any  oath  required  to  be  taken.  As  the 
relators  define  it  in  their  petition,  it  is  a  mere  trusteeship  the  duties 
of  it  being  to  take  charge  of  the  assets  and  wind  up  the  affairs  of  the 


§     I  QUO   WARRANTO,   IN   GENERAL.  269 

state  bank,  pay  out  its  specie  on  hand  pro  rata  and  issue  certificates 
of  indebtedness  to  bill-holders  and  other  creditors ;  in  one  word,  to 
administer  on  the  effects  of  a  defunct  corporation.  These  were 
duties  of  a  special  character,  applicable  alone  to  a  particular  corpo- 
ration, and  nothing-  more.  It  has  none  of  the  constituents  of  an  of- 
fice, none  whatever.  The  defendants  have  the  legal  title  to  all  the 
property  assigned  to  hold  to  them  and  to  the  survivors  of  them,  so 
that  by  judgment  of  ouster  they  could  not  be  divested  of  this  title. 
This  can  only  be  done  by  bill  in  chancery. 

Is  it  a  franchise?  A  franchise  is  said  to  be  a  right  reserved  to 
the  people  by  the  constitution,  as  the  elective  franchise.  Again,  it 
is  said  to  be  a  privilege  conferred  by  grant  from  government,  and 
vested  in  one  or  more  individuals  as  a  public  office.  Corporations 
or  bodies  politic  are  the  most  usual  franchises  known  to  our  laws. 
In  England  they  are  very  numerous,  and  are  defined  to  be  royal 
privileges  in  the  hands  of  a  subject.  An  information  wall  lie  in 
many  cases  growing  out  of  these  grants,  especially  w'here  corpora- 
tions are  concerned  as  by  the  statute  of  9  Anne,  ch.  20,  and  in  which 
•the  public  have  an  interest.  In  i  Stra.  (K.  B.)  (The  King  v.  Sir 
William  Louther)  it  was  held  that  an  information  of  this  kind  did 
not  lie  in  the  case  of  private  rights,  where  no  franchise  of  the  crown 
has  been  invaded. 

If  this  is  so — if  in  England  a  privilege  existing  in  a  subject,  which 
the  king  alone  could  grant,  constitutes  it  a  franchise, — in  this  coun- 
try, under  our  institutions,  a  privilege  or  immunity  of  a  public  na- 
ture, which  could  not  be  exercised  without  a  legislative  grant,  would 
also  be  a  franchise. 

There  must  be  some  parting  of  prerogative  belonging  to  a  king, 
or  to  the  people,  under  our  system,  that  can  constitute  a  franchise. 
Upon  these  defendants  nothing  of  that  kind  was  conferred.  The 
state  having  at  the  time  of  thoir  appointment  as  trustees,  an  interest 
of  $50,000  in  the  bank,  it  was  no  doubt  an  amicable  arrangement 
with  the  bank  that  the  governor  should  name  the  trustees.  But  at 
that  time  the  charter  w-as  forfeited  and  no  franchise  remained. 

The  defendants  were  appointed  trustees  on  the  31st  of  October, 
1848,  on  which  day  the  bank,  being  in  liquidation,  conveyed  to 
them,  by  deed  duly  executed  and  recorded,  all  the  assets  of  the  bank, 
real  and  personal,  in  trust  for  the  purposes  mentioned  in  the  deed, 
and  possession  w^as  delivered  to  them.  This  deed  refers  to  the  sec- 
ond section  of  the  act  of  1847  '^^'^^  recites  that  "the  governor  having 
designated  the  said  Uri  Manly,  John  Calhoun  and  Nicholas  Ridgelv 
as  the  three  trustees  to  be  appointed  by  him  under  the  provisions  of 
that  act ;  now  this  indenture  witnesseth",  etc.  By  this  deed  the  legal 
title  passed  to  these  defendants. 

At  this  date,  the  state  was  still  interested  in  the  bank,  to  the  ex- 
tent of  $50,000  and  it  was  just  and  right  and  a  partial  guarantee  to 


270  PEOPLE  EX   REL.    KOERNER  V.   RIDGELY   ET  AL.  §    I 

the  public,  that  this  interest  should  be  looked  after  by  agents  01 
her  own  selection.  But  on  the  first  of  July,  1852,  this  interest  was 
•  conveyed  to  the  trustees,  as  such,  on  their  surrender  to  the  state,  of 
an  equal  amount  of  state  bonds  and  other  evidences  of  indebtedness 
and  from  that  day  hence  forward  the  state  had  no  interest  whatever 
in  the  bank  or  corporation.  All  that  remained  in  the  bank  and  of 
the  bank,  belonged  to  its  numerous  creditors,  any  one  of  whom; 
could,  on  any  day  since  that  date,  have  filed  in  chancery  a  bill 
against  the  trustees  for  an  account,  and  for  their  removal,  and  for 
the  appointment  of  others  more  trustworthy,  the  state  being  in  no 
wise  responsible  for  their  conduct  or  interested  in  their  accounts. 

The  deed  executed  by  the  bank  to  the  defendants,  conveys  the 
legal  title  to  all  the  assets,  real  and  personal,  to  the  defendants,  of 
which  the  joint  action  of  the  governor  and  the  senate  cannot  de- 
prive them,  but  a  court  of  chancery  can.  That  court  can  give  ade- 
quate relief.  It  is  a  case  wholly  for  the  courts,  with  which,  neither 
the  executive  nor  the  legislature  can  rightfully  interfere,  nor  can 
we  in  this  proceeding,  for  if  judgment  of  ouster  is  rendered,  th6 
title  to  the  assets  is  still  in  the  defendants. 

These  defendants  have  a  high  duty  to  perform,  but  it  is  to  the 
creditors  of  the  bank  and  its  stockholders.  They  are  trustees  for 
them  and  can  only,  by  their  mal-administration  of  its  affairs,  mjure 
them,  and  to  them  the  courts  will  hold  them  responsible  on  a  proper 
case  made.  If  the  creditors  are  satisfied  with  the  manner  in  which 
the  trust  is  being  executed,  who  shall  complain?  The  public,  as 
such  have  not  a  particle  of  interest  in  the  matter,  in  any  view  in 
which  we  can  regard  the  case.  It  is  a  clear  case  between  trustee 
and  cestui  que  trust — who  are  not  the  people,  but  its  creditors  and 
stockholders. 

1  lad  the  legal  estate  in  the  assets  passed  to  the  relators  by  an  ade- 
quate conveyance,  then  indeed  there  might  be  some  pretense  pf 
right,  to  file  an  information. 

The  act  of  1847,  wnder  which  the  defendants  were  appointed, 
refers  U)  the  act  of  1845,  specially  applicable  to  the  liank  of  Illi- 
nois at  Shawneetown,  which  act  is  to  govern  in  winding  up  the 
bank,  as  far  as  ai:)i)licable.  l^)y  the  13th  section  of  that  act,  on  a 
vacancy  occurring  in  the  board  of  assignees,  it  was  to  be  filled  by  the 
remaining  assignees — if  they  fail  to  fill  it,  then  the  governor  is. to 
fill  it.       '  ' 

It  cannot  be  ])retendcd  under  tin's  act  that  the  governor  could 
make  vacancies  l)y  liis  own  act.  and  lill  1luin  by  his  own  appoint- 
ment. 'I'he  very  nature  f)f  the  trust  and  \\\c  luisiness  to  be  per- 
formed inuler  it,  forbids  the  idc-a  tliat  it  should  be  subject  to  the 
politics  of  the  country  and  its  many  fluctuations. 

In  every  aspect  in  which  we  can  view  lliis  case,  it  seems  a  clear 
case  for  the  defendants  imd   we  think  tlic  pli'a  is  a  fidl  and  com- 


§     I  QUO   WARRANTO,   IN   GENERAL.  2/1 

plete  bar  to  the  information,  and  shows  a  case  in  which  the  execu- 
tive has  no  power  to  interfere.  As  the  merits  of  the  case  have 
been  thoroughly  examined  and  considered  in  this  proceeding,  we 
make  no  question  as  to  its  propriety  as  appHcable  to  this  case. 

The  judgment  of  the  circuit  court  on  the  demurrer  is  affirmed, 
the  plea  of  the  defendants  being  a  full  answer  and  bar  to  the  infor- 
mation. 

Caton,  C.  J.,  did  not  hear  the  argument  in  this  case  and  gave  no 
opinion. 

Application  denied. 

See  also.  Commonwealth  v.  Dearborn,  15  Mass.  125 ;  Haupt  v.  Rogers, 
170  Mass.  71;  Attorney-General  v.  Bank  of  Niagara,  Hopk.  Ch.  (N.  Y.) 
354;  People  V.  Mutual,  etc.,  Co.,  38  Mich.  154;  Attorney-General  v.  Utica 
Ins.  Co.,  2  Johns.  Ch.  (N.  Y.)  371;  Commonwealth  v.  Allegheny  Bridge 
Co.,  20  Pa.  St.  185,  189;  State  v.  Shields,  56  Ind.  521,  528;  State  v.  Meehan, 
45  N.  J.  L.   189. 

Writ  refused  when  sought  for  purpose  of  annulling  license  to  practice 
medicine.      State   v.    Green,    112   Ind.   462. 


6.     Existence  and  adequacy  of  other  remedies  as  a  defense. 

STATE  EX  REL.  VANCE  v.  WILSON. 

1883.     Supreme  Court  of  Kansas.     30  Kan.  661  ;  2  Pac.  828. 

Valentine,  J.  This  is  an  action  in  the  nature  of  quo  warranto 
commenced  in  this  court  by  the  county  attorney  of  Shawnee  county, 
Kansas,  to  oust  the  defendant  from  the  office  of  mayor  of  the  city 
of  Topeka,  a  city  of  the  first  class.  The  grounds  upon  which  the 
action  is  founded  are  various  alleged  acts  and  omissions  on  the  part 
of  the  defendant,  affecting  the  due  enforcement  of  the  prohibitory 
liquor  law,  a  certain  prohibitory  liquor  ordinance,  and  certain  laws 
and  ordinances  relating  to  liquor-saloons,  bawdy-houses  and  gam- 
bling-houses. It  is  claimed  by  the  plaintiff  that  by  reason  of  these 
acts  and  omissions  the  defendant  has  forfeited  his  office.  "Original 
jurisdiction  in  proceedings  in  quo  warranto"  is  conferred  upon  the 
supreme  court  by  the  constitution  of  the  state,  Cons.,  art.  3,  §  3 ;  and 
this  jurisdiction  so  conferred  is  just  what  was  understood  to  be 
quo  warranto  jurisdiction  at  the  time  the  constitution  was  adopted. 
As  throwing  light  upon  the  last  proposition  see  Leavenworth  Co. 
y.  Miller,  7  Kan.  502:  State  v.  R.  R.  Co..  34  Wis.  iqy;  and  this 
iurisdiction  cannot  be  abolished  or  increased  or  diminished  by  the 
legislature.  State  v.  Allen,  c;  Kan.  213:  Graham  v.  Cowgill,  13 
Kan.  114;  State  v.  Graham,  id.  136.    Of  course,  the  legislature  has 


272  STATE  EX  REL.  VANCE  V.    WILSON.  §    I 

the  power  indirectly  to  affect  the  exercise  of  this  jurisdiction,  as  it 
has  the  power  directly  or  indirectly  to  afifect  almost  every  other 
matter  or  thing  coming  within  the  purview  of  the  constitution.  It 
may  increase  or  diminish  or  create  or  destroy  any  particular  in- 
stances in  which  this  jurisdiction  may  be  exercised ;  but  it  cannot 
increase  or  diminish  or  abolish  or  destroy  the  jurisdiction  itself. 
Thus,  it  mav  create  additional  offices  or  additional  grounds  for  for- 
feiture, and  thereby  increase  the  number  of  instances  in  which  the 
court  may  exercise  its  jurisdiction,  or  it  may  abolish  some  of  the 
offices  already  existing,  or  some  of  the  grounds  for  forfeiture  al- 
readv  existing,  and  thereby  diminish  the  number  of  instances  in 
w'hich  the  court  may  exercise  its  jurisdiction.  In  this  way  it  may 
reallv  create  or  destroy  instances  in  which  the  jurisdiction  may  be 
exercised.  But  within  these  limitations  whenever  a  proper  case 
arises  for  the  exercise  of  quo  warranto  jurisdiction,  as  quo  ivarranto 
jurisdiction  was  known  and  understood  at  the  time  of  the  adoption 
of  this  constitution,  this  court  may  take  jurisdiction  of  the  case  and 
determine  the  same,  whatever  may  be  the  enactments  of  the  legisla- 
ture on  the  subject. 

Applying  these  preliminary  remarks  to  the  subject  of  quo  ivar- 
ranto jurisdiction,  as  it  affects  public  offices,  we  would  say  that  we 
think  the  supreme  court  has  ample  jurisdiction  to  oust  any  person 
from  office  who  is  holding  the  same  without  any  sufficient  right 
thereto;  and  this,  whether  the  office  has  been  usurped,  or  zvhether 
the  incumbent's  term  of  office  has  expired  by  lapse  of  time,  or 
zvhether  the  incumbent  has  forfeited  his  right  to  hold  the  office  any 
longer  on  account  of  sonic  official  misconduct  on  his  part.  And  we 
think  the  court  has  jurisdiction  to  so  oust  the  incumbent  from  office 
where  he  is  holding  the  same  without  right,  although  the  question  of 
his  right  to  hold  the  office  or  the  question  of  forfeiture,  if  that  is  the 
case,  has  never  before  been  presented  to  any  court  for  judicial  de- 
termination. This  court  may  determine  the  question  of  right  or  the 
question  of  forfeiture  for  itself  (State  v.  Allen,  supra;  State  v. 
Graham,  supra;  Com.  v.  Walter,  83  Pa.  St.  105)  ;  but  of  course  be- 
fore this  court  can  oust  an  officer  from  his  office,  it  must  be  judi- 
cially determined  that  he  has  no  right  to  hold  the  same.  And  if  the 
alleged  ground  for  ousting  the  officer  is  that  he  has  forfeited  his  of- 
fice by  reason  of  certain  acts  or  omissions  on  his  part,  it  must  then 
be  judicially  determined,  before  the  officer  is  ousted,  that  these  acts 
or  omissions  ipso  facto  and  of  themselves  work  a  forfeiture  of  the 
office.  Mere  misconduct,  if  it  does  not  of  itself  work  a  forfeiture, 
is  not  sufficient.  Cleaver  v.  Com.,  34  Pa.  St.  283 ;  Brady  v.  Howe, 
50  Miss.  624.  625;  Lord  Bruce's  Case,  2  Stra.  (K.  B.)  819;  The 
King  v.  Ponsonby.  i  Ves.  Jr.  (Ch.)  t.  7:  Peo]ile  v.  Whitcomb,  55 
111.  172,  176;  High  Ex.  Rem.,  §  618.  The  court  has  no  power  to 
crcati-  a   forfeiture,  and  no  power  to  declare  a   forfeiture  where 


§    I  QUO   WARRANTO,   IN   GENERAL.  273 

none  already  exists.  The  forfeiture  nuist  exist  in  fact  before  the 
proceeding  in  quo  zvarranto  is  commenced.  See  authorities  above 
cited  and  State  v.  Hixon,  27  Arlc,  398,  402.  There  may  also  be  cases 
where  this  court  would  not  exercise  jurisdiction,  as  where  the  ques- 
tion of  forfeiture  is  at  the  same  time  being  litigated  in  some  other 
court  of  competent  jurisdiction,  or  where  some  other  plain  and  ade- 
quate remedy  exists.  And  the  court  may  also,  in  some  cases,  have 
a  discretion  as  to  whether  it  will  exercise  its  jurisdiction  or  not. 
We  shall  have  more  to  say  hereafter  with  reference  to  these  ques- 
tions. 

In  the  present  case  it  is  admitted  that  the  defendant  is  eligible 
to  hold  the  office  of  mayor ;  that  he  was  duly  elected  thereto,  or 
rather  that  he  was  duly  re-elected  thereto,  in  April,  1883  ;  that  he 
immediately  afterwards  qualified  and  took  possession  of  the  office, 
and  is  now  in  the  full  possession  of  the  same  and  holding  the  same. 
But  it  is  alleged  that  between  April  10,  1883,  and  June  i,  1883,  the 
time  when  the  present  action  was  commenced,  the  defendant  was 
guilty  of  various  acts  and  omissions  by  reason  of  which  he  has  for- 
feited the  office.  Now,  if  it  is  really  true  that  the  defendant  has  for- 
feited his  office,  then  it  will  be  the  duty  of  this  court  to  oust  him 
therefrom  ;  or,  at  least,  unless  some  other  plain  and  adequate  rem- 
edy exists.  But  the  question  arises,  has  he  forfeited  his  office  ?  For, 
as  before  stated,  unless  these  acts  and  omissions  ipso  facto  create  a 
forfeiture,  this  court  has  no  jurisdiction  in  quo  zvarranto,  or  in  any 
other  proceeding  to  oust  the  defendant  from  his  office.  It  makes  no 
difiference  whether  the  defendant  has  done  right  or  wrong,  for  as 
before  stated,  unless  his  acts  and  omissions  work  a  forfeiture,  this 
court  has  no  power  to  oust  him.  The  statutes  of  Kansas  (§78  of 
the  first  class  city  act)  provides  that  the  mayor,  police  judge  and 
councilmen"  shall  hold  their  offices  for  two  years,  and  until  their 
successors  are  elected  and  qualified :"  and,  of  course  they  will  hold 
their  offices  for  that  period  of  time,  unless  the  offices  become  vacant 
through  and  in  pursuance  of  some  provision  of  the  law.  Now,  there 
are  various  provisions  of  law  with  reference  to  vacancies  occurring 
by  reason  of  death,  resignation,  removal  from  the  place  where  the 
office  is  to  be  held,  removal  from  office  by  a  motion  and  removal 
from  office  on  the  grounds  of  misconduct  working  a  forfeiture. 
With  reference  to  removal  from  office  by  amotion,  or  on  the 
ground  of  misconduct  working  a  forfeiture,  counsel  for  the  defend- 
ant cites  the  following  statutes: — §  ii,  subd.  36,  and  §§  99  and  104, 
of  the  first  class  city  act.  Laws  i88t,  c.  37,  §213,  in  connection  with 
§§  207,  208  and  209  of  the  act  relating  to  crimes  and  punishments, 
CComp.  Laws  1879,  c.  31 ;)  and  ^  12  of  the  prohibitorv  liquor  law 
of  i88t,  (Laws  t88t.  c.^  128 V 

Counsel  for  the  defenda.-it  claim  that  these  sections  apply  to  the 
mayor  as  well  as  the  other  officers,  except  section  12.     Counsel  for 


274  STATE  EX  REL.   VANCE  V.    WILSON.  §     I 

the  plaintift"  admit  this,  except  that  they  make  the  further  claim  that 
said  section  ii,  subd.  36,  does  not  apply  to  the  mayor.  Now, 
whether  it  does  or  not,  we  think  it  is  clear  that  the  defendant  has 
not  forfeited  his  office  under  it.  And,  indeed  we  do  not  think  that 
the  defendant  has  forfeited  his  office  under  any  of  the  foregoing 
sections,  or  under  any  other  section  of  the  laws  of  the  state  of  Kan- 
sas. Said  section  99  has  no  application  to  this  case,  for  the  reason 
that  the  defendant  is  not  charged  with  any  of  the  wrongful  acts  or 
omissions  mentioned  in  that  section.  Under  sections  104  and  213, 
before  the  defendant  can  be  held  to  have  forfeited  his  office,  he  must 
not  only  have  committed  the  misconduct  therein  referred  to,  but 
he  must  also  be  tried  before  a  criminal  court,  where  he  must  be 
proved  to  be  guilty  beyond  all  reasonable  doubt  and  must  be  found 
guilty  and  sentenced ;  and  the  forfeiture  of  his  office  will  then  follow 
from  such  prosecution,  trial,  conviction  and  sentence,  and  as  a  part 
of  the  punishment  for  the  misconduct  of  which  he  is  found  guilty. 
Quo  zvarranto,  as  will  be  remembered,  is,  so  far  at  least  as  its  pro- 
cedure is  concerned,  a  civil  action  (Civil  Code,  §  652;  High 
Ex.  Rem.,  §§  591,  603)  ;  and  in  such  an  action  all 
the  evidence  that  is  required  to  prove  any  particular  fact 
is  a  bare  preponderance  of  the  evidence.  This  is  not  so 
in  a  criminal  action.  Besides  in  a  criminal  action  all  the  plea  that 
is  necessary  on  the  part  of  the  defendant  is  the  oral  plea  "not 
guilty".  It  is  very  different  from  this  in  quo  warranto  proceedings. 
From  this  it  will  clearly  appear  that  the  two  kinds  of  actions  should 
not  be  confounded  and  the  one  used  in  the  place  of  the  other.  If 
the  state  does  not  choose  to  prosecute  the  defendant  criminally,  it 
waives  the  forfeiture  and  the  incumbent  continues  to  hold  the  office 
rightfully.  And  forfeiture  for  unimportant  official  wrongs  is  often 
waived.  But  even  where  the  wrongs  are  of  such  magnitude  that 
the  state  does  not  choose  to  waive  the  forfeiture  for  them,  or  thi- 
prosecution  for  them,  but  prosecutes  the  defendant  criminally  for 
them,  still,  his  office  is  not  in  fact  forfeited  unless  the  jury  trying 
him  can  be  convinced  beyond  a  reasonable  doubt  that  the  defendant 
is  guilty.  Now,  there  is  no  pretense  that  in  the  present  case  the  de- 
fendant has  ever  been  prosecuted  or  convicted  for  any  of  the  wrongs 
charged  against  him  in  the  ])resent  case.  Upon  this  point  see  Brady 
v.  Howe,  supra;  The  King  v.  Ponsonby,  i  Ves.  Jr.  (Ch.)  7,  8,  and 
9;  .State  v.  Hixon,  27  Ark.  402.  All  that  we  have  said  with  respect 
to  misconduct  under  sections  104  and  213,  and  forfeiture  of  office 
for  such  misconduct,  will  apply  with  ecpial  force  under  section  12 
of  the  prohibitory  liquor  law;  and  in  addition  thereto  we  might 
also  say  that  said  section  12  does  not  seem  to  include  the  mayor. 
There  is  in  fact  no  statute  that  provides  that  the  mayor  shall  for- 
feit his  office  ipso  facto  by  reason  of  any  act  or  omission  of  his  sim- 
ilar to  those  cliargcd  in  the  present  case ;  but  something  else  must  be 
done  before  the  office  is,  in   fact,   forfcilcd.     And  \vc  think  that  no 


QUO  WARRANTO,   IN  GENERAL. 


-/  O 


decision  can  be  found  holding  that  a  forfeiture  of  office  may  be  de- 
clared in  a  proceeding  in  quo  zvarranto,  on  account  of  some  act  or 
omission,  because  merely  some  statute  provides  that  the  office  shall 
be  forfeited  upon  a  conviction  of  the  incumbent  in  a  criminal  prose- 
cution for  such  act  or  omission.  It  is  certainly  true  that  the  legis- 
lature may  provide  for  a  forfeiture  of  office  for  misconduct,  inde- 
pendent of  any  criminal  prosecution  or  any  prosecution  for  the 
same  (State  v.  Allen,  5  Kan.  214;  Com.  v.  Allen,  70  Pa.  St.  445; 
People  V.  Heaton,  yy  N.  Car.  18;  Com.  v.  Walter,  83  Pa.  St.  105)  ; 
and  the  legislature  often  does  provide  for  such  forfeitures ;  but  it 
has  not  done  so  in  the  present  case.  In  the  present  case  the  legis- 
lature has  provided  that  the  forfeiture  shall  follow  the  criminal 
prosecution,  the  conviction  and  the  sentence  and  it  cannot  come  be- 
fore. 

Counsel  for  the  plaintiff,  however,  claim  that  the  defendant  has 
forfeited  his  office  by  reason  of  the  rules  of  the  common  law.  Now, 
"we  suppose  that  if  the  defendant  has  in  fact  forfeited  his  office 
under  any  law,  whether  it  be  under  some  statutory  provision  or 
under  the  provisions  of  the  common  law,  he  may  be  ousted  from  his 
office  by  this  court,  and  in  this  kind  of  proceeding;  or,  at  least  if 
there  is  no  other  adequate  remedy.  The  defendant,  however,  claims 
that  he  has  not  forfeited  his  office  luider  any  law  ;  and  he  further 
claims  that  in  view  of  the  law  and  statutes,  he  could  not  forfeit  it 
under  the  common  law.  Here,  and  upon  this  last  proposition,  is 
where  the  principal  difference  between  the  counsel  for  the  plaintiff 
and  the  counsel  for  the  defendant  arises.  We  shall  now  proceed  to 
consider  this  question. 

Counsel  for  the  plaintiff  claim  that  at  common  law,  whenever  an 
officer  was  guilty  of  an  official  misconduct  he  immediately  forfeited 
his  office,  and  that  quo  warranto  would  immediately  lie  to  oust  him 
therefrom.  Now,  suppose  that  this  is  true ;  then  can  the  common 
law  apply  to  proceedings  in  quo  ivarranto  in  this  state,  notwith- 
standing the  statutes,  notwithstanding  the  difference  between  the 
institutions  of  this  country  and  those  of  England,  and  notwithstand- 
ing the  differences  in  the  tenures  by  which  offices  are  held  in  this 
country  and  in  England?  Hut  we  do  not  think  the  proposition, 
stated  as  broadly  as  it  is  by  the  counsel  for  the  plaintiff,  is  true.  In 
many  cases  of  official  misconduct,  in  England,  quo  zvarranto  would 
not  lie.  The  proceeding  was  largely  in  the  discretion  of  the  court 
to  which  the  application  was  made,  and  where  the  misconduct  was 
unimportant,  or  the  offense  trivial,  or  where  there  was  some  other 
plain  and  adequate  remedy,  the  courts,  would  seldom  if  ever,  enter- 
tain the  jurisdiction.  We  shall  discuss  these  matters  more  in  detail 
hereafter.  (The  court,  after  examining  the  Kansas  statutes  relat- 
ing to  the  forfeiture  of  public  offices,  and  holding  that  they  cover 


276  STATE  EX  REL.  VANCE  V.   WILSON.  §    I 

the  subject  to  the  total  exclusion  of  any  common  law  rules,  con- 
tinues) : 

]\Ir.  Hi^h  in  his  work  on  Extraordinary  Remedies,  lays  down  the 
doctrine  that  generally  quo  zvarranto  will  not  lie  where  there  is  any 
other  plain  and  adequate  remedy.  High  Ex.  Rem.,  §§  617,  616,  618, 
637,  643,  645.  Counsel  for  plaintiff  however,  claim  that,  Mr.  High 
is  mistaken ;  but  after  a  careful  and  pretty  thorough  examination  of 
the  authorities,  we  are  satisfied  that  Mt.  High's  statement  of  the 
rule  is  substantially  correct.  State  v.  Marlow,  15  Ohio  St.  114; 
State  V.  Tavlo,  id.  137;  State  v.  Hixon,  supra;  Com.  v.  Leech,  44 
Pa.  St.  332 ;  People  v.  Hillsdale,  etc.,  Turnpike  Co.,  2  Johns.  (N.  Y.) 
190;  Neely  v.  Wadkins,  I  Rich  Law.  (S.  Car.)  42;  Lord  Bruse's 
Case,  supra;  The  King  v.  Ponsonby,  supra;  The  King  v.  Heaven, 
2  T.  R.  (K.  B.)  yy2,  776.  In  Lord  Bruce's  case,  the  court  say: — 
"If  it  is  an  actual  forfeiture  he  is  out,  and  you  may  choose  another ; 
if  not,  it  is  but  a  misdemeanor,  and  a  quo  zvarranto  will  not  lie. 
Besides  the  modern  opinion  has  been  that  the  power  of  amotion  is 
incident  to  the  corporation."  In  the  case  of  the  King  v.  Ponsonby, 
which  in  the  lower  court  was  a  proceeding  in  quo  zvarranto  against 
a  person  holding  the  office  of  free  burgess  of  the  corporation  of 
Newtown,  charging  him  with  having  usurped  the  office,  it  was  held 
that  the  power  of  amotion  had  been  expressly  granted  to  the  corpo- 
ration, and  therefore  that  quo  zvarranto  would  not  lie  against  a 
membtr  until  such  power  of  amotion  had  been  exercised.  In  the 
case  of  the  King  v.  Heaven,  it  was  said  by  Ashurst,  J.,  "Whenever 
a  person  has  once  been  duly  elected  into  a  corporate  office  and  for- 
feits it  by  misconduct,  his  amotion  by  the  corporation  is  a  previous 
and  necessary  step  to  be  taken  before  this  court  will  grant  an  infor- 
mation in  the  nature  of  quo  zvarranto  against  him  ;  for  when  a  per- 
.con  once  neglects  the  duties  of  his  office  the  corporation  should  first 
take  cognizance  of  it  and  dei)rive  him,  and  then  it  may  properly  be 
brought  into  this  court".  The  case  was  decided  in  accordance  with 
this  o])inion.  These  three  English  cases  last  cited  were  with  refer- 
ence to  officers  of  municipal  corporations.  The  American  authori- 
ties also  seem  to  sustain  the  doctrine  enunciated  by  Mr.  High.  After 
an  examination  of  the  authorities  we  have  arrived  at  the  conclu- 
sion that,  as  a  general  rule,  a  court  having  the  power  to  exercise 
jurisdiction  in  quo  zvarranto  proceedings  will  not  exercise  its  juris- 
diction where  any  other  plain  and  adequate  remedy  exists.  This 
we  think,  was  always  the  law. 

Now  in  the  present  case  there  [^''^1  several  remedies,  some  of 
which  at  least  arc  adequate:  First,  there  is  the  remedy  of  removal 
or  amotion,  under  section  ti,  subd.  36.  of  the  first  class  city  act; 
second,  there  is  a  remedy  of  removal  given  for  certain  misconduct, 
under  §  00  of  the  first  class  city  act,  though  this  remedy  is  really  not 
applicable  to  the  present  case;  third,  there  is  the  remedy  by  criminal 


§    I  QUO   WARRANTO,   IN   GENERAL.  2/7 

prosecution  and  removal,  under  §  104  of  the  first  class  city  act, 
which  remedy  is  applicable  to  this  case ;  fourth,  there  is  the  remedy 
by  criminal  prosecution  and  forfeiture,  under  §  213,  in  connection 
with  §§  207,  208  and  209,  of  the  act  relating  to  crimes  and  punish- 
ments, which  remedy  is  also  applicable  to  this  case ;  there  is  also  the 
remedy  of  a  removal  by  an  election  by  the  people  every  two  years ; 
sixth,  and  there  are  various  other  remedies  for  misconduct  in  office 
by  fine  and  imprisonment,  under  various  criminal  statutes  of  the 
state ;  but  if  none  of  these  remedies  are  sufficient,  and  if  this  court 
may  take  the  jurisdiction  of  this  case  notwithstanding  the  various 
statutes  seemingly  against  it,  and  may  oust  the  defendant  from  his 
office  in  this  action,  then  every  other  officer  of  the  state,  who  may 
be  guilty  of  misconduct  in  office,  may  also  be  ousted  from  his  office 
by  this  court,  notwithstanding  all  the  other  remedies  of  ouster  and 
removal  and  fine  and  imprisonment  and  notwithstanding  all  the 
various  statutes  of  the  state  seemingly  adverse  to  such  a  thing,  and 
whose  plain  inferences  and  necessary  implications,  if  not  their  ex- 
press provisions,  are  clearly  against  the  exercise  of  such  jurisdic- 
tion. Thus,  a  street  commissioner  of  Baxter  Springs,  or  a  road 
overseer  of  Rawlins  County,  or  a  school  director  of  Finney  County, 
or  a  township  trustee  of  Doniphan  county,  might  be  ousted  from  his 
office  by  the  supreme  court,  notwithstanding  all  the  laws  seemingly 
against  it,  and  notwithstanding  all  the  difficulties  and  inconveniences 
that  might  ensue  in  the  prosecution  of  parties  at  such  great  dis- 
tances from  their  homes.  It  must  be  remembered  that  this  .court 
has  just  as  much  jurisdiction  over  the  most  remote  part  of  the  state 
as  it  has  over  the  city  of  Topeka. 

After  a  careful  consideration  of  this  case,  we  have  come  to  the 
conclusion  that  the  plaintifif's  petition  does  not  state  a  cause  of  ac- 
tion within  the  jurisdiction  of  this  court,  and  therefore  the  demurrer 
to  the  petition  will  be  sustained,  and  judgment  rendered  accordingly. 

All  the  justices  concurring. 


SNOWBALL  V.  PEOPLE  ex  rel.  GRUPE. 
1893.     Supreme  Court  of  Illinois.     147  111.  260,  35  N.  E.  538. 

Quo  WARRANTO  proceedings  by  the  people,  on  the  relation  of 
William  Grupe,  against  John  W.  Snowball.  There  was  judgment 
of  ouster,  which  was  affirmed  by  the  appellate  court.  Defendant 
brings  error.     Affirmed. 

Magruder,  J.  Two  questions  are  presented  for  consideration : 
First,  whether  the  court  below  had  jurisdiction  to  try  the  appel- 


278  SNOWBALL  V.    PEOPLE   EX   REL.    GRUPE.  §    I 

lant's  right  to  the  office  in  a  proceeding  by  quo  warranto;  second, 
whether  the  poll  established  at  the  Allerton  House,  can  be  regarded 
as  a  legally  authorized  voting  place. 

I.  Did  the  city  court  have  jurisdiction  to  entertain  the  present 
proceeding?  As  it  is  assumed  by  both  parties  that  the  city  court 
has  the  same  jurisdiction  in  the  matter  as  the  circuit  court  would 
have  under  the  same  circumstances,  we  shall  treat  the  case  as  though 
it  had  been  begun  in  the  circuit  court.  Baker  v.  Rockabrand,  118 
ill.  365,  8  N.  E.  456.  The  point  made  by  counsel  for  the  appellant 
is  that  this  is  a  mere  election  contest,  and  that  under  our  statutes 
such  contests  can  only  be  determined  by  the  county  court,  and  not 
by  the  circuit  court  in  a  quo  warranto  proceeding.  The  election  law 
after  providing  for  determining  election  contests  in  reference  to 
certain  special  officials,  not  including  members  of  boards  of  educa- 
tion, provides,  in  §  98,  that  the  "county  court  shall  hear  and  deter- 
mine contests  of  election  of  all  other  county,  township  and  precinct 
officers  and  all  other  officers  for  the  contesting  of  whose  election  no 
provision  is  made."  I  Starr  &  C.  Ann.  Stat.,  p.  1017,  ch.  46,  §  9, 
8  Rev.  Stat.,  §  13,  art.  3  of  the  act  of  May  21,  1889,  "to  establish 
and  maintain  a  system  of  free  schools",  provides  that,  at  any  school 
election  held  under  the  act,  "the  manner  of  contesting  said  election 
shall  be  the  same  as  prescribed  by  the  general  election  laws  of  this 
state  defining  the  manner  of  electing  magistrates  and  constables, 
so  far  as  applicable,  subject  to  the  provisions  of  this  act". 

In  construing  these  sections  of  the  election  and  school  laws,  we 
have  held  that  school  officers  are  of  the  same  class  as  county,  town- 
ship, and  precinct  officers,  and  that,  therefore,  the  county  court  is 
vested  with  jurisdiction  to  try  and  determine  contested  elections  of 
school  officers.  Misch  v.  Russell,  136  111.  22,  26  N.  E.  528.  But  we 
have  been  referred  to  no  case  in  this  state  where  it  has  been  held 
that  the  county  court  has  exclusive  jurisdiction  in  such  matters. 
There  seems  to  be  some  disagreement  among  the  authorities  on  the 
question  whether  proceedings  by  information  in  the  nature  of  quo 
warranto  are  excluded,  where  a  statute  prescribed  a  specifiic  mode 
for  contesting  elections,  and  designates  a  particular  tribunal  for  de- 
termining such  contests.  It  has  been  held  in  Ohio  and  Pennsyl- 
vania, and  perhaps  in  some  other  states,  that  where  a  specific  mode 
for  contesting  elections  has  been  prescribed  by  statute,  that  mode 
alone  can  be  resorted  to,  and  that  the  common  law  mode  of  pro- 
ceeding by  quo  warranto,  will  not  be  entertained.  State  v.  Marlow, 
15  C)hio  St.  114;  Com.  v.  Leach,  44  Pa.  St.  332;  Iligh  Ex.  Rem., 
§  ^)I7.  It  will  be  ff)und  upon  examination  that  the  decisions  which 
thus  hfjld  are  based  upon  peculiar  statutory  and  constitutional  pro- 
visions, which  do  not  exist  in  this  state.  People  v.  Hall,  80  N.  Y. 
1 17.  I'.ut,  independently  of  such  provisions,  the  weight  of  authority 
is  in  fn7'nr  of  the  position  that  the  special  remedy  rri^'en  by  statute  in 


§    I  QUO   WARRANTO,   IN  GENERAL.  279 

such  cases  ts  merely  cuinulatiz'e  and  not  exclusive  of  the  remedy  by 
quo  zvarranto.  The  general  principle  is  that,  in  the  absence  of  any- 
controlling  constitutional  restrictions  upon  the  subject,  the  juris- 
diction of  the  courts  to  proceed  by  information  in  the  nature  of  quo 
warranto  is  not  taken  away  by  a  statute  which  prescribes  a  special 
proceeding,  unless  there  are  express  words  in  the  statute  itself  tak- 
ing away  such  jurisdiction,  or  unless  it  appears  to  have  been  the 
manifest  intention  of  the  legislature  to  confine  the  remedy  to  the 
prescribed  proceeding  and  to  the  designated  tribunal.  I  Dillon  Mun. 
Cor.  (4th  ed.),  §  202,  (141,)  and  notes.  We  have  been  referred  to 
no  language  in  the  election  law  of  this  state  which,  either  in  terms 
or  by  necessary  implication,  expresses  a  legislative  purpose  to  de- 
prive the  circuit  courts  of  their  quo  warranto  jurisdiction.  Section 
12  of  article  6  of  the  present  constitution  of  the  state  provides  that 
"the  circuit  courts  shall  have  original  jurisdiction  in  all  cases  in 
law  and  equity".  As  quo  zvarranto  is  a  common  law  remedy,  the 
circuit  courts  are  vested  by  the  organic  law  with  the  power  to  en- 
tertain it.  People  V.  Hall,  supra;  Kane  v.  People,  4  Neb.  509.  In 
addition  to  this,  the  "Act  to  revise  the  law  in  relation  to  quo  war- 
ranto" provides  that  a  petition  for  leave  to  file  an  information  in  the 
nature  of  a  quo  zvarranto  in  the  name  of  the  people  of  the  state  may 
be  presented  to  "any  court  of  record  of  competent  jurisdiction",  in 
case  "any  person  shall  usurp,  intrude  into,  or  unlawfully  hold  or 
execute  any  office".    2  Starr  &  C.  Ann.  Stat.,  p.  1871. 

In  the  present  case,  the  seven  votes  cast  for  the  appellant  at  the 
Allerton  House  gave  him  his  majority,  and  without  them  he  would 
not  have  been  elected.  While  the  officer  who  holds  the  certificate  of 
election  from  the  canvassing  board  has  a  prima  facie  title,  yet  he  is 
certainly  not  entitled  to  the  office  if  he  did  not  receive  a  majority  of 
the  legal  votes  cast  at  the  election.  It  is  the  right  of  the  people  to  go 
behind  the  certificate,  and  determine  whether  the  holder  of  it  is 
rightfully  in  office.  2  Dillon  Mun.  Cor.  (4th  ed.),  §892  (716). 
The  true  view  to  take  of  the  subject  is  that  the  proceeding  by  quo 
zvarranto  is  not  strictly  an  election  contest  between  two  persons 
claiming  the  same  office.  "That  proceeding  only  determines  that  the 
person  holding  the  ofhce  is  or  is  not  an  usurper.  But,  ousting  him, 
if  the  court  finds  against  him,  it  adjudges  the  right  to  the  office  to 
no  one".  People  v.  Londoner,  13  Colo.  303,  22  Pac.  764;  State  v. 
Francis,  88  Mo.  557.  Under  our  form  of  government  all  power 
emanates  from  the  people.  The  right  to  inquire  into  the  authority 
by  which  any  person  assumes  to  exercise  the  functions  of  a  public 
office  or  franchise  belongs  to  the  people,  as  a  part  of  their  sover- 
eignty. In  the  quo  zvarranto  proceedings  the  people  are  the  plain- 
tiffs, whether  upon  the  relation  of  a  third  person,  or  not.  The  rule 
that  where  a  new  right,  and  a  remedy  for  its  invasion,  are  comprised 
in  the  same  statute,  parties  injured  are  confined  to  the  statutory  re- 


280      PEOPLE  EX   REL.   FARRINGTON    ET  AL.   V.   WHITCOMBE  ET  AL.       §     I 

dress,  does  not  apply  to  the  people.  People  v.  Hall,  supra;  Dudley 
V.  Mayhevv,  3  N.  Y.  g.  Because  the  statute  provides  a  mode  of  con- 
testing elections  in  the  county  court,  it  does  not  follow  that  the  peo- 
ple, in  their  sovereign  capacity,  are  thereby  precluded  from  inquir- 
ing bv  information  in  the  nature  of  a  quo  zvarranto  into  usurpations 
of  ofifice.  "The  two  remedies  are  distinct ;  the  one  belonging  to  the 
elector  in  his  individual  capacity,  as  a  power  granted,  and  the  other 
to  the  people  in  the  right  of  their  sovereignty."  People  v.  Holden, 
28  Cal.  123.  This  right  of  the  people  is  not  "in  any  manner  im- 
paired by  statutes  granting  to  electors  in  their  private  capacity  as 
citizens,  the  right  to  contest  the  election  of  any  person  assuming  to 
exercise  the  functions  of  an  office."  High  Ex.  Rem.  (2nd  ed.)  624; 
McCrary  Elec.  (3d.  ed.),  §  360;  Cooley,  Const,  Lim.  (6th  ed.),  p. 
785,  and  note  i ;  Com.  v.  Allen,  70  Pa.  St.  465 ;  People  v.  Londoner, 
sufra;  and  cases  cited;  People  v.  Bird,  20  111.  App.  568;  State  v. 
Fitzgerald,  44  Mo.  425 ;  Kane  v.  People,  supra;  Linegar  v.  Ritten- 
house,  94  111.  208;  State  v.  Funck,  17  Iowa  365 ;  Cheshire  v.  People. 
116  111.  493,  6  N.  E,  486;  People  v.  Hall,  supra.  We  are  of  the 
opinion  that  the  court  below  had  jurisdiction  to  entertain  the  pres- 
ent proceeding. 

The  judgment  of  the  appellate  court  is  affirmed  on  other  grounds. 

See  also,  Tarbox  v.  Sughrue,  36  Kan.  225 ;  Kane  v.  People,  4  Neb.  509 ; 
People  V.  Holden,  28  Cal.  123;  State  v.  Funck,  17  la.  365;  Wammack  v. 
Holloway,  2  Ala.  31;  People  v.  Bird,  20  111.  App.  368;  State  v.  Shay,  loi 
Tnd.  36;  People  v.  Thompson,  21  Wend.  (N.  Y.)  235;  State  v.  Equitable 
Loan,  etc.,  Asso.,  142  Mo.  325,  337;  Converv  v.  Conger,  53  N.  J.  L.  658; 
State  V.   Baker,  38  Wis.  71,  80. 

Contra:  Holding  that  where  the  statute  provides  a  remedy,  same  in  ex- 
clusive. Reg.  v.  Morton,  L.  R.  (1892),  i  Q.  B.  39;  State  v.  Gates.  35 
Minn.  385;  Parks  v.  State,  100  Ala.  634;  People  v.  Every,  38  Mich.  405; 
State  v.  Tavlor,  15  Oh.  St.  137;  Darrow  v.  People,  8  Colo.  417;  Seay  v. 
Hunt,  55  Tex.  545;  State  v.  Tomlinson,  20  Kan.  692;  Commonwealth  v. 
Garrigues,  28  Pa.  St.  9. 


7.     Not  to  be  employed  to  test  the  legality  of  acts. 
I'EOPLE  EX  REL.  FARRINGTON  et  Ar.  v.  WHITCOMBE  et  al. 
1870.     Supreme  Court  of  Illinois.     55  111.   172. 

Mr,  Justice  Walker  delivered  the  o])inion  of  the  court. 

This  was  an  information  in  ihc  nature  of  a  quo  warranto,  filed 
by  Addison  h'arrington,  and  a  miniber  of  other  persons,  in  the 
Whiteside  Circuit  Cf)urt.  at  the  May  Term,  1869,  against  Geo.  A. 
Whitconibc  and  others,  who  were  acting  as  mayor  and  common 
cotuicil  of  the  town  of  Morrison  in  that  count).  'I'he  information 
charged  that  the  town  is  located  on  a  imrt   if  section  eighteen,  in 


i;     I  QUO   WARRANTO,    IX   CEXERAL.  281 

township  twcnt}-one,  north  of  range  five,  east  of  the  fourth  princi- 
pal meridian,  and  embraces  within  its  borders  about  one  hundred 
and  sixty  acres ;  that  the  town  is  and  has  been  for  a  long  time  past, 
incorporated  under  the  laws  of  this  state ;  that  the  town  had  its 
president  and  trustees,  and  had  at  no  times  forfeited  or  suspended 
the  rights  pertaining  to  it^  under  the  laws  of  its  incorporation. 

That  the  defendants  had  for  forty  days,  and  more,  used,  and  are 
still  using,  without  any  warrant  or  charter,  the  rights,  privileges 
and  franchises  of  the  town  over  the  lands  therein,  together  with 
other  lands  beyond  the  boundaries  of  .the  town,  which  are  described, 
and  which  embrace  about  one  thousand  acres,  against  the  will  of 
the  owners  and  inhabitants  of  the  said  territory ;  that  the  defendants 
are  exercising  the  city  government  over  such  territory  for  the  pur- 
pose of  levying  taxes,  passing  ordinances,  expending  money  and 
obtaining  credit  in  the  name  of  the  city  government,  and  the  people 
and  the  property  beyond  the  limits  of  the  town. 

That  the  city  proper  embraces  but  one  sixth  of  the  territory  over 
which  defendants  are  exercising  and  claiming  the  right  to  extend 
the  city  government ;  that  the  remainder  of  the  territory  is  agricul- 
tural or  farming  lands,  and  is  occupied  and  used  by  the  owners 
thereof  exclusively  for  that  purpose ;  that  there  are  within  the  terri- 
tory twelve  improved  farms,  over  which  the  defendants  were  at- 
tempting to  establish  and  set  up  and  establish  the  city  government. 

The  petition  contains  a  prayer  that  the  defendants  be  required  to 
answer,  and  show  by  what  authority,  w^arrant  and  claim,  they  have 
used  and  enjoyed  the  liberties,  privileges  and  franchises  of  the  city. 

The  defendants  filed  an  answer,  setting  up,  that  by  an  act  of  the 
general  assembly  of  the  state,  approved  on  the  twenty-third  of  Feb- 
ruary, 1869,  entitled  "an  act  to  incorporate  the  city  of  Morrison" 
which  is  set  out,  and  confers  the  powers  necessary  to  a  city  govern- 
ment, and  authorizes  the  levy  and  collection  of  taxes  to  defray  the 
expenses  arising  from  the  administration  thereof;  that  under  the 
provisions  of  the  act  they  were  duly  elected,  Whitcombe,  mayor,  and 
the  others,  members  of  the  common  council,  and  that  by  virtue  of  the 
city  charter  and  such  election,  they  were  exercising  the  powders  of 
the  city  government  within  the  limits  prescribed  by  the  charter. 

To  this  answer  relators  filed  a  general  demurrer,  which,  on  a 
hearing,  was  overruled,  and  judgment  for  costs  rendered  against 
them.  To  reverse  that  judgment,  relators  bring  the  record  to  this 
court,  and  assign  for  error  the  overruling  of  the  demurrer,  and  ren- 
dering judgment  against  them  for  the  costs. 

The  question  sought  to  be  raised  by  the  information  in  this  case, 
is,  whether  the  city  officers  can  extend  the  city  government  beyond 
the  original  limits  of  the  town,  and  can  levy  taxes  and  enforce  ordi- 
nances in  the  portion  of  territory  annexed  by  the  act  of  Februarv 
23,   1869,  and  which  is  used  exclusively  for  agricultural  purposes, 


282      PEOPLE  EX   REL.   FARRINGTOiX   ET  AL.   V.    WIIITCOMBE   ET  AL.       §     I 

and  whether  that  act  is  not  unconstitutional  and  void.  The  demur- 
rer to  the  answer  of  the  respondents  brought  the  whole  record,  as 
well  the  information  as  the  answer,  before  the  court  to  determine 
its  sufficiency.  The  first  question  presented  by  the  demurrer  is, 
whether  the  remedy,  if  any  exists,  has  not  been  misconceived ; 
whether  the  question  of  power  to  extend  the  city  government  over 
this  territory  thus  annexed  can  be  raised  by  quo  warranto. 

This  writ  is  generally  employed  to  try  the  right  a  person  claims 
to  an  office,  and  not  to  test  the  legality  of  Jiis  acts.  If  an  officer 
threatens  to  exercise  power  not  conferred  upon  the  office,  or  to  ex- 
ercise the  powers  of  his  office  in  a  territory  or  jurisdiction  within 
which  he  is  not  authorized  to  act,  persons  feeling  themselves  ag- 
grieved may  usually  restrain  the  act  by  injunction.  The  case  of  the 
Attorney  General  v.  Supervisors,  11  Mich.  63,  was  a  bill  filed  to 
restrain  the  county  authorities  from  unlawfully  removing  a  county 
seat,  and  an  injunction  was  granted.  But  that  case  does  not  hold 
that  the  act  could  have  been  prevented  by  an  information  in  the  na- 
ture of  a  quo  warranto. 

The  case  of  the  People  v.  Maynard,  15  Mich.  463,  was  such  an 
information,  but  it  questioned  the  right  of  the  officer  to  act  as  treas- 
urer, in  a  county.  He  claimed  that  by  the  formation  of  a  new 
county,  the  residence  of  the  treasurer  of  the  original  county  being- 
embraced  in  the  new  county,  the  office  had  become  vacant,  and  that 
he  was  appointed  treasurer  to  fill  the  vacancy.  But  it  was  held  that 
the  law  which  purported  to  create  the  new  county  was  unconstitu- 
tional, and  that  the  office  of  treasurer,  had  not  become  vacant,  and 
hence  respondent  had  not  been  legally  appointed  and  did  not  hold 
the  office  or  any  title  to  it.  The  proceeding  was  instituted  alone  to 
try  the  question  whether  he  was  an  officer,  and  not  whether  his 
official  acts  should  be  confined  to  a  special  locality.  It  is  true  that 
the  solution  of  the  question  whether  he  was  legally  treasurer  de- 
l)ended  upon  the  validity  of  the  law  intended  to  create  the  new 
county.  But  it  does  not  follow,  because  the  question  whether  a  law 
is  constitutional  may  arise  in  determining  whether  a  person  is  legally 
in  office,  that  this  proceeding  may  be  resorted  to  for  the  purpose  of 
determining  whether  a  law  is  invalid. 

In  this  case,  there  seems  to  be  no  question  that  defendants  in 
error  are  legally  and  properly  officers  of  the  city,  and  there  can  be 
as  little  doubt  that  they  may  perform  all  the  functions  of  their  of- 
fices within  the  city  limits,  whatever  they  may  Ije.  If  they  attempt 
to  pa.«s  and  enforce  ordinances  beyond  the  Iwunds  of  the  city,  or  to 
levy  and  collect  taxes  beyond  the  city  limits,  such  acts  would  be  un- 
atithorizcd,  and  might,  no  doubt,  be  restrained,  on  a  bill  ])roperly 
framed  for  that  purjjose.  lUit  whether  a  law  which  purports  to  at- 
tach this  territory  to  the  original  corporate  limits  is  or  is  not  con- 
stitiiti.Mi:.]    i;iiniot  be  determined  in  such  a  ])rocee(ling  as  this.     If 


§     I  QUO    WARRAXTO,   IN    GENERAL.  2^3 

the  corporate  atithorities  shall  attempt  to  enforce  their  ordinances 
ag^ainst  persons  in  the  territory  thus  annexed,  they  may  raise  the 
question  of  the  validity  of  the  law  on  their  defense,  or  if  they  shall 
levy  and  attempt  to  collect  taxes  on  the  lands  embraced  in  the  por- 
tions used  for  agricultural  purposes,  the  tax  payers  might,  no  doubt, 
file  a  bill  to  restrain  their  collection,  and  thus  present  the  question 
whether  the  law  is  valid  and  binding. 

Nor  can  it  be  said  that  defendants  in  error  have  waived  the  right 
to  raise  the  question  whether  this  proceeding  will  lie,  as  an  issue 
of  fact  was  not  formed  or  a  trial  had.  The  whole  record  was  before 
the  court  below  for  inspection  on  the  demurrer,  and  as  relators 
had  failed  to  show  that  they  were  entitled  to  relief  in  the  mode 
adopted,  the  court  could  not  do  otherwise  than  sustain  the  demurrer 
to  the  information,  and  there  is,  therefore,  no  error  in  the  judgment 
of  the  circuit  court.  When  the  question  sought  to  be  raised  shall 
be  properly  presented,  it  wnll  receive  the  consideration  which  its 
gravity  demands.  The  judgment  of  the  court  below  must  be  af- 
firmed. 

Judgment  affirm.ed. 


UPDEGRAFF  et  al.  v.  CRANS. 
1864.     Supreme  Court  of  Pennsylvania.     47  Pa.  St.  103. 

(Appellee  filed  a  bill  in  equity  to  enjoin  the  appellants  from  ex- 
ercising the  duties  of  officers  of  the  borough  of  Williamsport  on  the 
ground  that  their  election  was  fraudulent,  illegal  and  void.  De- 
murrer overruled.     Appeal.) 

The  opinion  of  the  court  was  delivered  by  Thompson,  J. 

The  complainant  below  mistook  the  remedy  for  testing  the  rights 
of  the  several  persons  claiming  to  be  borough  officers,  under  the 
appointment  of  the  borough  council,  on  the  15th  of  June  last.  Quo 
warranto  is  the  specific  statutory  remedy  for  such  a  case.  But  it  is 
alleged  that  the  appointees  had  not  entered  upon,  or  exercised,  or 
attempted  to  exercise,  the  duties  of  their  offices  when  the  bill  was 
filed.  If  that  is  so,  it  only  shows  that  the  plaintiff  moved  too  soon. 
He  should  have  waited  and  if  they  never  entered  or  usurped  the  ex- 
ercise of  authority  under  their  appointments,  no  harm  could  have 
been  done;  but  if  they  did,  that  moment  the  law  would  afford  an 
ample  remedy  by  quo  zvarranfo  for  trying  their  right.  The  specific 
remedy  at  law,  ousts  the  equitable  jurisdiction  of  the  case.  There 
should,  therefore,  have  been  judgment  on  the  demurrer  for  tlie  de- 
fendants, and  the  bill  dismissed. 

The  decree  of  the  common  pleas  is  now  reversed,  and  the  bill  of 


284  STATE  V.    PAWTUXET  TURNPIKE   COMPANY.  §     I 

complaint  is  dismissed  at  the  costs  of  the  appellee,  including  the 
costs  of  the  appeal. 

See  also,  Hullman  v.  Honcomp,  5  Oh.  St.  237;  Osgood  v.  Jones,  60  N. 
H.  282. 

See  next  section,  §  2,  for  further  discussion  of  proper  remedy  where 
municipal  corporation  unlawfully  exercises  governmental  powers  over  ter- 
ritory  illegally  annexed. 


8.     Operation  of  Statutes  of  Limitations. 

STATE  V.  PAWTUXET  TURNPIKE  COMPANY. 
1867,     Supreme  Court  of  Rhode  Island.     8  R.  I.  521. 

This  was  an  application  by  the  defendants  for  a  rehearing  upon 
an  information  in  the  nature  of  quo  ivarranto,  and  to  set  aside  the 
judgment  of  forfeiture  rendered  at  the  former  hearing. 

The  case  was  argued  by  Edzvard  Mctcalf  for  the  petitioners  upon 
the  following  brief. 

I.  The  proceeding  was  not  instituted  in  behalf  of  the  state  until 
after  a  lapse  of  over  six  years,  and  this  is  held  by  the  English 
courts,  to  be  a  good  bar  to  a  prosecution  for  a  forfeiture.  Angell 
and  Ames  Corp.,  §  743,  p.  718-719  (7th  ed.  and  cases  there  cited). 
It  would  seem  that  under  our  statutes  of  limitations,  the  right  or 
power  to  interfere  with  corporate  franchises,  as  claimed  in  this 
case,  can  hardly  be  an  unlimited  one,  and  if  there  be  any  limitation, 
that  of  six  years  would  be  natural  and  obvious. 

II.  The  court  in  its  opinion  omits  any  reference  to  the  first  sec- 
lion  of  the  charter  of  1825.  The  conveyance  held  to  be  a  cause  of 
forfeiture  is  claimed  to  have  been  made  in  good  faith,  under  express 
powers  granted  by  this  section.  Applying  the  very  language  of  the 
opinion  vindicating  the  neglect  to  make  annual  election,  of  corpo- 
rate officers,  the  act  condemned  by  the  court  would  seem  to  be 
cr|ually  ju.stifiable  under  the  charter.  And  if  the  charter  does  not 
CDufer  power  to  make  such  a  grant,  or  conveyance,  would  not  the 
proper  rcm.edy  be  to  avoid  the  conveyance,  and  leave  the  corporation 
still  bound  to  maintain  that  portion  of  its  road  which  it  had  at- 
tcinptcd  to  convey? 

III.  r.iit  this  conveyance  if  binding  on  the  corporation,  is  not 
ncrcssarily  a  cause  of  forfeiture.  The  cases  cited  by  the  court  go 
to  shf)w  that  there  must  cither  be  a  wilful  abuse  of  corjiorate  powers, 
a  pross  neglect  of  duties,  or  an  irremediable  injury  to  the  public,  to 
warrant  so  extreme  a  measure  as  the  forfeiture  f^f  corporate  fran- 
chi.scs.  See  the  general  doctrine  staled  .ind  illu.strated  in  Angell 
and  Ames  Corp.,  §  yyC),  pp.  760  to  762.     In  the  language  of  Chief 


§     I  QUO   WARRANTO,    IN    (iEXERAl..  285 

Justice  Nelson  cited  by  the  court  (23  Wend.  211),  "A  substantial 
compliance,  according  to  the  terms  of  the  charter,  is  all  that  is  re- 
quired." 

IV.  The  defendants  know  of  no  case  in  point,  but  think  it  may 
be  safely  asserted  that  the  power  to  declare  a  charter  forfeited  has 
never  been  exercised  under  similar  circumstances.  The  facts  sub- 
mitted to  the  jury,  their  verdict  and  the  opinion  of  the  court,  taken 
together  show,  1,  that  the  conveyance  in  question  was  made  in  the 
exercise  of  a  power  given  by  charter ;  2,  that  no  neglect  of  duty  by 
the  corporation  is  charged  or  implied ;  3,  that  instead  of  working  an 
injury  to  the  public  or  to  individuals,  the  conveyance  in  question  was 
made  for  the  manifest  convenience  and  benefit  of  the  public  and  of 
individuals,  and  at  the  earnest  solicitation  of  the  town  of  Cranston, 
which  accepted  the  conveyance,  and  which  in  this  matter  is  the  sole 
representative  of  the  public  convenience  and  interests. 

Charles  H.  Park  hurst,  for  the  Attorney  General,  in  behalf  of  the 
state,  argued  against  the  petition  upon  the  following  brief: — 

The  ground  upon  which  the  charter  was  declared  forfeited  was 
that  the  defendant  corporation  did,  in  the  year  1855,  sell  to  the 
town  of  Cranston  a  portion  of  their  road,  and  that  since  that  time  it 
has  ceased  to  keep  that  portion  of  said  road  in  repair. 

I.  This  is  clearly  an  act  which  said  corporation  could  not  right- 
fully do  under  its  charter.  It  is  of  itself  a  deliberate  act  of  wilful 
misfeasance,  which  is  a  sufficient  cause  for  the  forfeiture  of  its 
charter.  Prior  to  this  sale,  whenever  any  corporation  wished  to 
convey  a  portion  of  their  road,  they  asked  authorit}-  from  the  state, 
which  had  a  reversionary  interest  in  the  road  under  the  charter. 
This  assent  was  granted  upon  such  restrictions  as  were  necessary 
to  protect  the  interests  of  those  living  adjoining  the  part  conveyed, 
and  the  public  interests  also.    See  Schedules.  January  Session,  1847, 

p.  45- 

II.  By  the  terms  of  the  charter  providing  for  the  vesting  of  the 
road  in  a  certain  contingency  in  the  state,  said  road  became,  of 
necessity,  inalienable  estate,  in  whole,  or  in  part,  withovit  the  ex- 
press assent  of  the  legislature.  See  Schedules,  January  Session, 
1825,  p.  27. 

III.  There  has  been  no  waiver  of  its  reversion  by  the  state.  The 
Statute  of  Limitations  does  not  run  against  the  state  so  as  to  bar  it 
from  asserting  its  claims  to  the  property  forfeited  by  misuser  or 
misfeasance,  where  the  property  belongs  to  the  state  by  virtue  of 
its  sovereignty. 

The  opinion  of  the  court  was  read  by  Durfee,  J.  The  leading 
ground  assigned  for  this  application  is,  that  the  prosecution  was  not 
instituted  in  behalf  of  the  state  until  after  a  lapse  of  over  six  years 
from  the  happening  of  the  cause  of  forfeiture ;  and  we  are  referred 
to  Angell  &  Ames  Corp.  (7th  ed.),  §  743,  and  the  cases  there  cited, 


286  STATE  V.    PAWTUXET   TURNPIKE   COMPANY.  §     I 

as  showing  that  after  the  lapse  of  so  long  a  time,  we  ought  not  to 
entertain  the  proceeding.  The  cases  cited  in  Angell  &  Ames  show 
that  the  English  rule  is,  not  to  allow  an  information  in  the  nature  of 
a  quo  zvarrauto  to  be  filed,  at  the  instance  of  a  private  individual. 
for  the  purpose  of  impeaching  the  title  to  a  corporate  office  or 
franchise,  where  the  same  has  been  held  or  exercised  without  com- 
plaint for  more  than  six  years  from  the  time  of  the  alleged  usurpa- 
tion. An  information  in  the  nature  of  quo  ivarranto  cannot  be  filed 
by  a  private  individual  without  leave,  which  the  court  may  at  its 
discretion,  either  grant  or  refuse.  To  regulate  their  discretion,  as 
afifected  by  lapse  of  time,  the  English  courts  adopted  the  rules  which 
we  have  stated.  But  the  Attorney  General,  representing  the  Croimi 
in  England  and  the  State  in  this  country  may  file  an  information  in 
the  nature  of  a  quo  ivarranto,  without  leave  according  to  his  ois^n 
discretion:  and  we  find  no  English  law  which  holds  that  an  informa- 
tion, so  tiled,  can  he  barred  by  the  lapse  of  six  years  independently 
of  any  statute  to  that  effect.  On  the  contrary,  in  the  leading  case  of 
Rex  v.  Wardroper.  4  Burr.  (K.  B.)  1963.  where,  after  a  lapse  of 
nineteen  years,  the  court  refused  leave  to  file  an  information,  the 
judges  were  careful  to  express  a  reservation  in  favor  of  the  crown, 
and  said:  "Indeed,  no  length  of  usurpation,  shall  affect  the  crown. 
nullus  tempns  occurrit  regi."  The  only  case  which  we  find  that 
claims  a  discretion  for  the  court,  in  this  regard,  over  an  information 
filed  by  the  attorney  general,  is  the  People  v.  Bank,  i  Dougl.  Mich.^ 
285.  The  court  in  that  case  do  not  profess  to  follow  any  precedent, 
but  stand  on  their  own  opinion  of  what  is  salutary  and  reasonable. 
Wg.  think  the  case  of  Rex  v.  Wardroper  declares  the  sounder  doc- 
trine. The  attorney  general  being  a  public  officer,  may  be  presumed 
to  be  capable  of  a  salutary  and  reasonable  discretion,  as  well  as  the 
court,  and  when,  acting  in  behalf  of  the  state,  he  deems  it  his  duty 
to  prosecute  for  a  forfeiture,  it  is  not  for  the  court,  in  the  absence 
of  any  statutory  limitation,  to  say  he  is  too  late.  Indeed  this  court 
has  itself  decided  that  after  the  information  has  once  been  filed,  its 
discretion  ceases,  and  it  has  then  nothing  to  do  but  administer  the 
law  the  same  as  in  any  other  case.    State  v.  Brown,  5  R.  I.  i. 

In  this  case,  moreover,  the  attorney  general  is  acting  not  only  on 
his  own  discretion,  l)ut  also  under  a  resolution  of  the  general  as- 
sembly authorizing  the  proceeding,  which  gives  additional  strength 
to  the  rcasrtn  whv  the  court  should  allow  the  jirosecutions  to  go  on. 
ncjtwithstanding  the  lapse  of  time. 

The  groimd  upon  which  the  court  have  decreed  a  forfeiture  in 
this  case  is.  tliat  the  defendant  corj^oration  did.  in  tlie  year  1855, 
sell  and  convcv  to  the  town  of  Cranston  a  portion  of  their  road,  and 
that  since  then  they  have  ceased  to  keep  that  i)ortion  of  the  road  in 
rcpafr.  The  counsel  for  the  corporation  claims,  as  another  reason 
for  a   rchcarnicr.  Ihrit   midcr  Ihr   first   section   of  their  charter,  the 


§     I  QUO   WARRANTO,    IN    GENERAL.  287 

corporation  had  the  right  to  make  such  sale  and  conveyance,  and 
that  the  attention  of  the  court  was  not  directed  to  this  provision  at 
a  former  hearing.  The  first  section  of  the  charter  gives  a  name  to 
the  corporation,  and  provides  that  by  that  name  they  "shall  be  and 
are  hereby  made  able  and  capable  in  law,  as  a  body  corporate,  to 
purchase,  possess,  have  and  enjoy  to  themselves,  their  successors 
and  assigns,  lands  not  exceeding  fifty  acres,  tenements,  rents,  tolls 
and  eflFects  of  what  kind  and  nature  soever,  and  the  same  to  grant, 
sell  or  dispose  of  by  deed  or  deeds  at  their  own  will  and  pleasure." 
This  section  confers  the  right  which  is  claimed  for  the  corporation, 
if  the  road  itself  was  intended  to  be  included  in  the  fifty  acres  there 
mentioned.  Subsequent  provisions  of  the  charter  show  that  this 
could  not  have  been  intended.  The  second  section  prescribes  that 
the  road,  to  be  made  and  maintained  by  the  corporation,  shall  be 
three  rods  wide,  and  shall  commence  and  terminate  at  certain  points, 
pursuing  a  certain  direction.  The  eleventh  section  provides  that 
when  the  earnings  of  the  road  shall  amount  to  enough  to  pay  for 
what  the  road  cost,  together  with  the  expense  of  maintaining  and 
keeping  it  in  repair,  and  twelve  per .  cent,  per  annum  in  interest 
thereon,  the  corporation  shall  be  dissolved,  and  the  road  aforesaid 
vested  in  the  state.  These  two  sections  are  inconsistent  with  a  right 
to  sell  and  convey  the  road ;  for  after  a  sale  and  conveyance  legally 
made,  the  road  could  no  longer  be  maintained  by  the  corporation 
nor  vest  in  the  state.  The  fifty  acres  mentioned  in  the  first  section 
must  therefore  be  construed  to  mean  fifty  acres  in  addition  to  the 
land  on  which  the  road  is  madc'^a  construction  which  the  more 
readily  suggests  itself  from  the  fact,  that  a  special  mode  is  provided 
for  the  acquisition  of  the  land  to  be  used  for  the  road. 

We  have  also  been  referred  to  a  statute,  passed  in  1864,  authoriz- 
ing turnpike  corporations  to  transfer  their  roads  to  the  towns  where 
they  are  located,  for  public  highways,  and  have  been  asked  to  infer 
from  thence  that  the  transfer  by  this  corporation  of  a  portion  of  its 
road  for  such  a  purpose  is  no  ground  of  forfeiture.  The  statute  is 
not  retrospective  in  its  terms,  and  it  does  not  purport  to  be  declara- 
tory merely  of  existing  laws.  It  initiates  a  new  policy ;  but,  while 
it  may  afiford  reason,  appealing  to  the  attorney  general  or  the  legis- 
lature, for  not  prosecuting  this  corporation  for  having  done  what 
this  and  every  other  turnpike  corporation  in  the  state  are  now  per- 
mitted to  do,  we  do  not  see  how  it  gives  us  any  right  to  declare  the 
law,  as  applicable  to  an  act  done  in  1855.  to  be  any  otherwise  than 
it  was  before  the  enactment  of  the  statute. 

The  counsel  for  the  corporation  also  presses  upon  the  court, 
again,  the  arguments  which  were  urged  at  a  former  hearing.  We, 
however,  see  no  sufficient  reason  for  changing  the  opinion  then  ex- 
pressed, and  must,  therefore,  dismiss  the  application. 


288  REX    V.    EDWIN    WARDROPER.  §    I 

See  also  People  v.  Pullman,  etc.,  Co.,  175  111.  125 ;  Commonwealth  v. 
Allen,  128  Mass.  308;  State  v.  Buckley,  60  Oh.  St.  273;  People  v.  Stan- 
ford, Tj  Cal.  360. 

In  People  v.  Boyd,  132  111.  60,  an  endeavor  is  made  to  distinguish  be- 
tween those  cases  where  the  object  is  to  enforce  a  private  (?)  right  and 
those   wherein   a   public   right   alone   is   involved. 

The  state  may  be  barred  by  its  own  laches  and  acquiescence. — Common- 
wealth v.  Bala,  etc.,  Co.,  153  Pa.  St.  47;  State  v.  Gordon,  87  Ind.  171; 
State  V.  Town  of  Westport,  116  Mo.  582,  593;  State  v.  Bailey,  19  Ind.  452; 
People   V.    Maynard,    15    Mich.   463;    State   v.    Sharp,   27    Minn.    38. 

Acquiescence  by  the  relator  or  participation  in  the  acts  complained  of 
or  laches  will  estop.— Reg.  v.  Anderson,  2  Q.  B.  740,  42  E.  C.  L.  891  ; 
Dorsey  v.  Ansley,  72  Ga.  460;  Guzman  v.  Walker,  11  La.  Ann.  693;  Maddox 
V.  York,  21  Tex.  Civ.  App.  622;  Terhune  v.  Potts,  47  N.  J.  L.  218;  People 
v.   Schnepp,    179  111.  305;   Cate  v.   Turber,   56   N.   H.   224. 


9.     Discretion  of  court  in  refusing  or  granting  the  writ. 
REX  V.  EDWIN  WARDROPER. 
1766.     Court  of  King's  Bench,  England.     4  Burr.  (K.  B.)  1963. 

Two  days  after  such  declaration  made  by  the  court,  as  above, 
there  came  before  them  several  of  these  "to  show  cause  why  infor- 
mations in  nature  of  quo  zuarranto  should  not  be  granted  'against  the 
several  defendants  claiming  rights  as  corporators  of  Winchelsea". 

One  of  the  principal  of  them  was  this  Edwin  Wardroper.  The 
length  of  possession  of  their  respective  corporate  offices  were  (as 
has  been  said  before)  very  different;  some,  above  twenty  years; 
some  under.  Wardroper's  possession  was  of  the  length  of  nineteen 
years  and  eight  montlis.  after  a  re-election  (which  re-election  had 
been  made  for  greater  caution)  ;  and  of  twenty-seven  years  from  his 
original  election.  The  objection  to  him  was  noii  rcsiancy  sworn 
against  him  to  the  belief  of  three  persons  who  made  the  affidavits. 
But  he  produced  positive  and  full  affidavits  to  the  contrary ;  and  he 
shewed  that  the  makers  of  the  affidavits  had  voted  for  him  and  had 
concurred  with  his  acting  in  this  his  corporate  office,  upon  many 
occasions;  and  never  before  objected  to  the  legality  of  his  right, 
f  fe  also  swore  that  he  had  paid  scot  and  lot.    Whereupon 

Sir  Fletcher  Norton,  on  behalf  of  the  defendant,  prayed  that  the 
rule  might  be  discharged  with  costs. 

Mr.  I  farvey.  Mr.  Kemp,  Mr.  Walker,  and  Mr.  Dunning,  insisted 
that  the  r|iicstion  turned  upon  this — "What  was  a  real;  what,  a  col- 
ourable rcsirlcncc?"  anrl  this  they  said  ou;^ht  tn  be  tried  by  a  jury, 
not  upon  aiTiHaTit;  especially  in  a  case  like  this,  where  there  is  no 
danger  rif  ihr-  dissolution  of  the  corporation. 

Lord    MrMisficM   mentioned   the   case   of   Sir   William   Trclawncv 


§    I  QUO   WARRANTO,   IN    GENERAL.  289 

who  was  steward  of  the  borough,  at  the  time  of  his  election  to  be  a 
capital  burgess  of  West  Loe.  And  the  court  discharged  the  rule 
obtained  against  him,  without  sending  the  question  to  a  jury. 

The  statute  of  9  Anne,  ch.  20,  had  a  view  to  the  speedy  justice  to 
be  done  against  usurpers  of  office  in  corporations,  as  well  as  to  quiet 
the  title  of  those  who  had  right.  And  that  act  does  not  leave  it  to 
the  discretion  of  the  officer,  as  it  was  before ;  but  puts  it  in  the  dis- 
cretion of  the  court.  Therefore  the  court  must  exercise  a  discre- 
tion. It  would  be  very  grievous  that  the  information  should  go  of 
course ;  and  it  would  be  a  breach  of  trust  in  the  court,  to  grant  it  as 
of  course.  On  the  contrary  the  court  are  to  exercise  a  sound  discre- 
tion upon  the  particular  circumstances  of  every  case.  Now  here  is 
no  fact  sworn  to  impeach  the  defendant's  right.  Therefore  the 
court,  if  it  had  been  nicely  attended  to,  ought  not  indeed  to  have 
granted  the  rule.  As  to  the  residence  of  the  defendant,  nothing 
more  than  apprehension  and  belief  "that  he  was  not  resident"  are 
sworn  to ;  no  fact.  But  the  defendant  swears  positively  to  the  fact, 
"that  he  was  resident  at  the  time" ;  and  swears  to  a  re-election,  made 
upon  a  doubt  of  his  former  election ;  which  is  a  fact  of  notoriety  in 
the  place,  and  a  circumstance  leading  to  believe  that  he  was  resident 
at  this  re-election.  A.nd  these  very  persons  who  now  make  the  affi- 
davits against  him,  voted  at  his  election ;  and  they  have  voted  with 
him  at  other  elections.  His  re-election  is  above  nineteen  years  ago ; 
and  many  others  claim  under  his  rights. 

Therefore,  on  the  merits  of  this  rule  alone,  independently,  I  think 
it  ought  to  be  discharged  with  costs,  for  the  misbehavior  of  the  par- 
ties applying  for  it.  But  if  it  shall  appear  that  there  is  misbehavior 
on  both  sides,  it  may  be  a  different  consideration,  as  to  the  costs. 

The  three  other  judges  concurred  to  discharge  the  rule  with 
costs.  They  said,  they  ought  not  to  encourage  vexatious  prosecu- 
tions, which  tend  to  throw  corporations  into  confusion.  Here  is  a 
long  acquiescence;  though  not  indeed  twenty  years  quite;  and  the 
defendant  is  now  attacked  without  sufficient  grounds.  The  verv 
persons  who  now  object  to  him,  have  themselves  voted  for  him,  and 
concurred  with  him  in  his  acts  as  a  corporate  officer.  Their  con- 
duct therefore  gives  the  lie  to  their  complaint. 

Here  is  a  sufficient  residence  proved ;  and  he  bore  the  burdens  of 
the  corporation,  and  paid  scot  and  lot  which  must  have  been  no- 
torious. 

This  is  a  hardened,  as  well  as  a  groundless  application ;  and  if  the 
court  were  to  make  this  rule  absolute,  they  would  act  contrary  to 
the  words  and  spirit  of  9  Anne,  ch.  20,  which  intended  to  quiet  the 
possession  of  such  as  had  a  right,  as  well  as  for  the  speedv  removal 
of  usurpers. 

Indeed,  no  length  of  usurpation  shall  affect  the  crown ;  nullus 
tcmpus  occv.rrit  regi.     The  King  v;i!l  ?-;nt  be  bound  bv  our  discharo-- 


290  LYNCH   V.    MARTIN.  §    I 

ing  the  ntle :  the  croivn  may  still  bring  a  quo  zvarranio.  But  we  are 
to  exercise  a  just  discretion,  and  not  to  promote  vexation. 

The  court  were  most  clear  and  unanimous  in  their  opinion  "that 
the  rule  ought  to  be  discharged".  And  as  the  application  was  so 
very  unreasonable  and  groundless,  they  thought  that  the  case  of 
Xew  Radnor  (ante  Vol.  I,  p.  580,  Rex  versus  Lezvis)  would  warrant 
their  discharging  it  with  costs.    Therefore 

Per  Cur.  unanimously. — 

Rule  discharged  zvith  costs. 


LYNCH  V.  MARTIN. 
1881.     Superior  Court  of  Delaware.     6  Houst.  (Del.)  487. 

(Application  by  Lynch,  who  was  a  candidate  for  the  office  of 
sheriff,  against  Martin,  who  had  been  declared  elected  to  said  office 
and  was  in  possession  thereof,  for  an  order  to  show  cause  why  an 
information  in  the  nature  of  a  quo  zvarranto  should  not  be  filed 
against  the  respondent,  and  a  writ  issued  requiring  him  to  show  by 
what  warrant  he  holds  said  office.  The  application  was  supported 
by  affidavits.) 

(Opinion  of  Comegys,  C.  J.,  omitted  and  also  so  much  of  the 
opinion  of  Houston,  J.,  as  relates  to  the  affidavits  filed.) 

Houston,  J. — The  ancient  writ  of  quo  zvarranto  for  which  an  in- 
formation in  the  nature  of  the  writ  seems  to  have  become  at  an  early 
period  the  general  substitute,  was  a  high  prerogative  writ  in  the  na- 
ture of  a  writ  of  right  for  the  king  in  the  country  from  which  we 
have  derived  it,  against  one  who  had  usurped  or  claimed  any  office, 
franchise  or  liberty  of  the  crown,  to  inquire  by  what  authority  he 
supported  his  claim  to  it,  in  order  to  determine  the  right.  And  as 
such  franchises,  offices  or  liberties  in  their  origin  pertain,  as  high 
prerogative  rights,  to  the  king  exclusively,  and  could  only  be  held 
and  obtained  by  gift  or  grant  from  him,  any  one  in  the  possession  of 
such  a  franchise  or  office  was  commanded  by  the  writ  to  show  by 
what  authority  he  held  or  exercised  it,  he  was,  of  course  brought 
into  direct  conflict  with  the  king  himself  before  the  tribunal  that 
was  to  try  it,  as  claiming  a  high  prerogative  right  pertaining  to  the 
sovcrcicMi  alone,  and  which  could  only  vest  in  a  subject  by  actual 
grant  to  him  or  his  ancestors.  And,  accordingly  in  such  a  contest 
it  was  early  ruled  and  established  that  it  was  alisolutcly  incumbent 
upon  the  (Icfcndant  in  it  to  show  to  the  satisfaction  of  the  court 
that  he  had  a  good  and  valid  title  in  law  to  the  office  or  franchise 
in  f|ucstion,  ancl  if  he  failed  to  do  so,  it  was  pronounced  a  usurpa- 
tion on  the  rights  of  the  crown,  and  judgment  of  ouster  was  rcn- 


§    I  QUO   WARRANTO,   IN   GENERAL.  29I 

dered  against  him.  And  the  courts  in  this  country  have  followed 
this  ruling  quite  rigidly  in  cases  of  informations  in  the  nature  of 
writs  of  quo  ivarranto,  although,  we  have  no  crown  and  no  king 
and  no  prerogative  rights  under  our  republican  form  of  government 
and  of  popular  elections  to  public  offices  such  as  the  one  now  under 
consideration. 

It  was  also  at  an  earl)  period  equally  well  settled  in  the  courts  of 
England  that  an  information  in  the  nature  of  the  writ  of  quo  ivar- 
ranto would  be  granted  as  a  matter  of  course  whenever  applied  for 
in  the  proper  form,  but  the  propriety  of  the  practice  had  before  been 
questioned  by  Lord  Mansfield  and  all  the  judges  then  sitting  with 
him  in  the  Court  of  King's  Bench,  as  early  as  the  year  1766,  in  the 
case  of  Rex  v.  Wardoper,  4  Burr.  (K.  B.)  1963,  in  which  after  re- 
ferring to  a  previous  case  in  which  the  court  had  discharged  the 
rule  obtained  against  the  defendant,  without  sending  the  question 
to  a  jury,  he  remarked  in  regard  to  the  case  then  before  the  court 
that  "it  would  be  very  grievous  that  the  information  should  go  of 
course.  And  it  would  be  a  breach  of  trust  in  the  court  to  grant  it 
as  of  course ;  on  the  contrary,  the  court  are  to  exercise  a  sound  dis- 
cretion upon  the  particular  circumstances  of  every  case".  And  the 
same  court  expressed  the  same  opinion  in  the  succeeding  cases  of 
Rex  V.  Dawes,  4  Burr.  (K.  B.)  2022,  2120,  2277;  Rex  v.  Stacey,  i 
T.  R.  (K.  B.)  I.  Some  twenty  years  later,  reaffirming  the  same 
principle,  Lord  Mansfield,  again  remarked:  "I  remember  when  it 
was  so  much  the  practice  of  the  court  to  grant  quo  zuarranto  infor- 
mations as  of  course  that  it  was  held  prudent  never  to  show  cause 
against  the  rule,  for  fear  of  disclosing  the  grounds  on  which  the 
party  went.  But  now,  since  these  matters  have  come  more  under 
consideration,  it  is  no  longer  a  matter  of  course,  and  the  court  are 
bound  to  consider  all  the  circumstances  of  the  case  before  they  dis- 
turb the  peace  and  quiet  of  any  corporation."  The  corporation  re- 
ferred to  was  that  of  the  borough  of  Winchelsea.  and  the  point  to 
be  considered  was  whether  one  Martin  was  duly  elected  mayor  of 
it,  on  which  election  the  validity  of  the  defendant's  franchise,  as  a 
freeman  of  the  borough,  depended ;  the  quo  ivarranto  information 
moved  against  him  was  to  show  by  what  authority  he  claimed  the 
franchise.  And  the  ruling  on  this  point  as  above  stated,  has  been 
recognized  and  reaffirmed  in  all  the  cases  of  the  kind  which  have 
followed  it,  both  in  that  country  and  in  this,  until  now  it  is  become  a 
settled  rule  and  is  always  in  the  discretion  of  the  court  to  grant  or 
withhold  an  information  of  this  sort  in  this  nature,  and  to  this  end 
that  they  are  bound  to  exercise  a  sound  discretion  upon  considera- 
tion of  the  particular  circumstances  in  each  case.  Cole  Criminal 
Information,  etc.,  56  Law  Libr.  165  ;  High  Ex.  Rem.  §  605. 

It  has  also  been  decided  that  zvhcn  the  evidence  presented  to  the 
court  in  the  affidavits  for  and  against  the  rule  to  shozv  cause,  is 


292  LY^'CH   V.    MARTIN.  §    I 

convicting,  ajid  is  not  such  as  to  raise  a  fair  doubt  on  zvhich  side 
the  balance  inclines  upon  the  question  of  fact  presented,  the  court 
should  not  grant  the  application^  -or  make  the  rule  absolute.  The 
King  V.  IMein,  3  T.  R.  (K.  B.)  596.  And  in  a  later  case,  Lord  Ken- 
yon  states  the  rule  on  this  point  in  still  stronger  terms,  which 
was  upon  a  rule  on  the  defendant  to  show  cause  why  an  information 
in  the  nature  of  quo  zmrranto  should  not  be  filed  against  him  for 
exercising  the  office  of  bailiff  of  the  borough  of  Seaford,  the  charter 
of  which  provided  that  the  inhabitants  and  tenants  residing  in  it 
should  annually  elect  on  the  day  stated  some  person  from  among 
themselves  to  be  the  bailiff  of  it,  and  the  affidavits  on  the  part  of  the 
relator  stated  ''that  the  defendant  was  not  resident  in  the  borough 
at  the  time,  of  his  election,  as  was  required  and  made  necessary  by 
the  charter,  or  according  to  the  true  meaning  and  intent  of  the 
same,"  which  was  contradicted  by  affidavits  on  behalf  of  the  defend- 
ant to  the  effect  that  he  had  rented  a  house  in  the  borough  on  the 
28th  day  of  September  preceding  for  one  year,  and  that  he  and  his 
servant  had  slept  in  it  that  night,  and  quitted  Seaford  the  next  day 
after  the  election,  but  he  had  been  there  again,  and  resided  and 
slept  in  the  same  house  on  the  23d  and  24th  of  October  last.  For 
the  relator  it  was  argued  that  this  was  a  mere  colourable  residence; 
and  further  that  whether  it  was  a  colourable  or  a  bona  fide  resi- 
dence, was  a  question  of  fact  for  the  consideration  of  the  jury;  and 
the  very  circumstance  of  its  being  disputed  was  decisive  to  show 
that  the  rule  should  be  made  absolute  in  order  that  the  jury  might 
determine  the  question.  But  Lord  Kenyon,  C.  J.,  said  "I  cannot 
forbear  reprehending  the  manner  in  v/hich  the  prosecutor's  case  has 
been  laid  before  the  court ;  the  affidavits  on  his  part  contain  nothing 
but  a  loose  general  charge  against  the  defendant.  When  Lord 
ATansfield  first  came  into  this  court  he  found  informations  in  the 
nature  of  a  quo  zvarranto  were  Iiad  almost  for  the  asking,  but  he 
soon  saw  the  impolicy  and  vexation  of  such  a  rule ;  and  therefore 
before  he  granted  any  such  application  he  canvassed  the  case,  and 
unless  he  found  strong  grounds  for  questioning  the  defendant's 
title  he  (and  the  court  sitting  with  him)  always  refused  to  let  the 
information  go.  Such  is  the  conduct  which  T  am  inclined  to  pursue; 
and  therefore  I  .shall  consider  all  the  circum-stances  of  this  case." 
The  King  v.  Sarjeant,  5  T.  R.  (K.  B.)  466.  These  cases  have  been 
followed  by  so  many  rulings  to  the  same  effect  in  England  that  Mr. 
Cole,  an  ringUsh  writer  of  acknowledged  authority  on  the  subject, 
say  thnt  thi-;  is  now  the  settled  doctrine  of  the  courts  of  that  coun- 
try. Cole  Criminal  Information,  etc.,  56  Law  Libr.,  165.  And  it 
also  appears  to  have  been  as  generally  recognized  in  the  courts  of 
this  countrv.  among  wh'ch  we  have  a  case  in  the  time  of  Gibson, 
r.  J.,  in  Pcnnsvlvania,  in  which  he  even  likened  the  status  of  the 
court  in  such  a  case  to  that  of  an  inquest  between  the  accuser  and 


§    I  QUO   WARRANTO,   IN   GENERAL.  293 

the  accused ;  to  which  the  inculpatory  evidence  should  be  submitted 
before  he  could  be  sent  before  a  jury  to  be  tried  for  the  alleged 
usurpation.    Commonwealth  v.  Jones,  12  Pa.  365. 

It  has  also  been  held  that  to  entitle  a  party  to  such  an  information, 
on  the  ground  that  the  person  holding  the  office  had  not  been  elected 
by  a  majority  of  the  legal  votes,  the  relator  must,  by  affidavit,  make 
out  a  prima  facie  case  to  the  satisfaction  of  the  court.  Rex  v.  Mash- 
iter,  6  Ad.  &  El.  (K.  B.)  153;  i  Nev.  &  P.  (K.  B.)  314;  Rex  v.  San- 
ford,  I  Nev.  &  P.  (K.  B.)  328;  and  at  this  stage  of  the  proceeding 
the  court  L^^come  the  judges  of  the  evidence,  as  well  as  the  law  in 
the  case,  and  of  the  weight  and  credibility  of  the  testimony  produced 
before  them  when  the  affidavits  filed  for  and  against  the  application 
are  contradictory  in  their  character. 

But  as  the  counsel  for  the  respondent,  in  their  argument  on 
showing  cause  against  the  rule,  took  the  ground  that  inasmuch 
as  the  relator,  in  his  affidavit  to  his  petition  and  the  foregoing 
allegations  contained  in  it,  does  not  swear  positively  and  directly 
to  the  truth  of  these  statements  upon  his  own  actual  knowledge 
of  them,  but  only  to  his  belief  in  them,  which  might  have  been, 
and  doubtless  was,  founded  on  information  merely,  it  could  not 
be  considered  as  sufficient  proof  of  any  one  of  the  allegations  con- 
tained in  it  as  to  any  of  the  illegal  votes  which  he  asserts  were  cast 
and  counted  for  the  respondent,  his  affidavit  to  his  petition  being 
in  the  following  words  simply: — "Before  the  prothonotary  of  this 
court  comes  Purnal  J.  Lynch,  the  petitioner  above  named,  and 
being  by  me  solemnly  sworn  according  to  law,  says  that  what 
is  contained  in  the  foregoing  petition,  so  far  as  concerns  ^the 
deponent's  act  and  deed,  is  true,  and  that  what  relates  to  the 
act  and  deed  of  any  other  person  he  believes  to  be  true."  It 
is  apparent  from  the  tenor  of  this  and  marked  discrimination  be- 
tween his  own  act  and  the  act  of  any  other  person  referred  to  in 
it,  that  so  much  of  it  as  relates  to  the  act  of  any  other  person  or 
persons  is  based  on  hearsay  and  information  merely  and  it  is 
equally  as  apparent  that  he  must  have  received  by  hearsay  from 
a  number  of  persons  present  on  that  day  in  the  several  election 
districts  mentioned,  the  information  on  which  he  rests  his  sworn 
belief  that  there  were  eighty-five  illegal  votes  polled  at  them  that 
day  for  the  respondent.  But  it  is  not  directly  alleged  anywhere 
in  the  petition  that  any  of  the  alleged  unqualified  voters  referred 
to  in  it  voted  for  the  respondent,  but  indirectly  or  by  implication 
only  is  expressed  in  the  allegation  several  times  repeated  in  the 
same  words,  that  there  were  so  many  illegal  votes  cast  bv  unqualified 
persons  in  the  election  districts  named,  and  that  they  were  all 
counted  for  the  respondent. 

But  the  rule  of  law  requires  that  the  affidavits  made  in  support 
of  an  application  for  an  information  in  the  nature  of  the  zvrit  of 


294  LYNCH    V.    MARTIN.  §    I 

quo  zvairaiito  shall  he  complete  and  sufficient  in  every  respect  and 
contain  positive  allegations  and  a  precise  statement  of  the  facts 
on  zvhich  the  prosecutor  assails  the  title  of  the  respondent  to  the 
office  or  franchise  in  question.  Cole  Criminal  Information,  etc.,  178; 
High  Ex.  Leg.  Rem.  §  733 ;  3  Steph.  N.  P.  2460 ;  King  v.  Newling, 
3  T.  R.  (K.  B.)  310;  King  v.  Lane,  5  Barn.  &  Aid.  (K.  B.)  488; 
Rex  V.  Serjeant,  5  T.  R.  (K.  B.)  466.  And  although  such  an 
affidavit  to  the  following  purport:  that  the  deponent  "understands 
and  believes,"  or  "has  heard  and  believes  or  has  been  informed 
and  believes,"  udien  it  has  reference  to  statements  alleging  a  usurpa- 
tion .  of  the  office  merely,  has  been  considered  sufficient  under 
certain  circumstances,  as  where  the  usurpation  was  not  denied  by 
the  respondent,  who  made  no  answer  to  the  application,  the  rule 
is  otherwise  when  the  allegations  go  to  the  validity  of  the  title 
of  the  respondent  to  the  office  in  question.  Rex  v.  Harwood.  2 
Fast  (K.  B.)  177;  Rex  v.  Blythe,  6  B.  &  C.  (K.  B.)  240.  And 
as  in  this  case  the  allegations  in  the  petition  and  affidavit  of 
the  relator  go  directly  to  the  validity  of  the  title  of  the  respondent 
to  the  office  in  controversy,  and  there  having  never  been  any  ques- 
tion or  dispute  from  the  inception  of  the  proceedings,  as  to  the 
fact  that  the  respondent  has  been  formally  sworn  in,  and  is  now  in 
full  possession  of  and  exercising  the  functions  of  the  office,  but 
which  the  relator  alleges  is  by  usurpation  merely  and  without  any 
legal  right  or  title  to  it,  under  the  rule  of  law  before  stated  we 
must  hold  the  affidavit  of  the  relator  to  be  insufficient  to  sustain 
any  of  the  allegations  contained  in  his  petition  in  reference  to 
the  alleged  illegal  votes  cast  in  the  said  several  election  districts 
mentioned  in  it.  Besides,  the  weight  and  credibility  of  it  as  evidence 
in  the  case  is  justly  subject  to  the  animadversion  that  it  is  made  in 
his  own  interest. 

The  answer  and  affidavit  of  the  respondent  traverses  and  denies 
all  the  allegations  of  the  relator  as  to  the  illegal  votes  cast  and 
counted  for  him  in  the  several  election  districts  specified  in  his 
petition  as  fully  and  directly  as  it  could  have  been  under  the 
general  terms  in  which  the  allegations  arc  made,  without  naming 
any  of  the  persons  who  are  alleged  to  have  so  voted. 

(The  court  after  noting  the  five  affidavits  filed  in  behalf  of  the 
respondent  and  comparing  them  with  those  filed  by  the  relator, 
continues.) 

Now,  if  upon  these  affidavits  for  and  against  the  application 
we  were  in  our  discretion  to  order  this  case  to  go  to  trial  before 
a  jury  would  it  not  be  very  much  like  going  back  to  tnc  days  in 
the  courts  of  England,  spoken  f>f  by  Lord  Mansfield,  when  as  he 
.said  such  could  almost  have  been  done  and  had  for  the  asking, 
and  if  he  and  the  judges  of  the  court  of  king's  bench  of  that  day 
would  nnt   permit    the  peace  and  quiet  of  a  municii)al   corporation 


S    I  QUO  WARRANTO,   IN   GENERAL.  295 

or  the  office  of  a  mere  bailift  of  an  English  borough  to  be  so  dis- 
turbed without  strong  and  sufficient  grounds  in  the  opinion  of 
the  court  to  invahdate  his  title  to  it,  should  this  court  be  less  strict 
or  remiss  in  the  observance  of  the  same  wise  and  salutary  rule 
of  law  and  practice,  when  the  validity  of  an  election  to  the  sheriff's 
office  of  this  great  county  is  the  subject  of  the  inquiry  moved  for 
in  this  case?  And  if  the  precedent  were  once  set  to  the  contrary 
on  light  and  frivolous,  or  insufficient  grounds  and  proof  presented 
on  the  affidavits,  where  would  it  end,  particularly  in  cases  of 
closely  contested  elections  for  the  office  resulting  in  a  small  ma- 
jority or  plurality  of  the  popular  vote  either  way,  as  in  the  present 
instance.  The  desire  is  very  strong  and  the  temptation  very 
great  on  the  part  of  the  defeated  party  to  get  rid  of  such  a  result, 
and  resort  to  any  means  and  to  strain  any  evidence  in  their  power 
to  accomplish  their  purpose  of  avoiding  it. 

We  have  in  the  affidavits  the  testimony  of  five  witnesses  for 
the  respondent  to  one  for  the  relator,  two  of  the  former  officers 
of  the  election  in  question,  and  all  of  them  resident  in  the  said  elec- 
tion district,  and  extensively  acquainted  with  the  voting  population 
of  it,  against  the  testimony  of  a  single  witness  on  the  other  side 
who  is  also  a  resident  in  said  election  district,  but  who  mentions 
no  names  and  gives  us  no  information  of  how  he  acquired  his  singu- 
lar knowledge  that  thirty  of  the  persons  who  voted  at  the  said  elec- 
tion for  the  respondent  for  sheriff,  were  not  then  residents  of  the 
said  district,  as  he  alleges,  the  first  inquiry  naturally  presented  by 
it  for  our  consideration,  how  could  that  have  been  done  without  any- 
one of  the  five  such  witnesses  learning  anything  about  it.  Thirty 
non-residents  is  certainly  no  small  number  to  vote  at  the  polls  of 
a  rural  election  district,  and  that  too  without  its  coming  to  the  knowl- 
edge apparently  of  but  one  single  voter  of  either  party  at  the 
polls  that  day ;  and  it  certainly  does  not  lessen  the  singularity 
or  improbability  of  it,  that  no  one,  not  even  the  witness,  Toy 
himself,  m.ade  any  objections  at  the  polls  to  the  vote  of  any  of 
them  upon  that  or  any  other  ground,  as  we  are  warranted  in  infer- 
ring in  the  absence  of  any  allegation  by  him  or  any  other  witness 
to  that  effect. 

The  learned  counsel  for  the  relator  seemed  not  to  be  uncon- 
scious of  the  weakness  and  infirmity  of  his  proof  on  this  point, 
and  sought  to  palliate  and  excuse  the  deficiency  of  it  on  the  ground 
that  they  were  obliged  to  depend  on  voluntary  affidavits  solely, 
and  had  no  power  by  legal  process  to  compel  any  person  to  testify 
in  such  a  case.  But  such  is  the  law  and  the  practice  in  such  case, 
and  it  proceeds  on  the  ground  that  it  is  not  reasonable  to  suppose 
that  any  other  person  in  the  said  election  district  favorable  to  the 
election    of   the    relator,    having   knowledge    of   the   alleged    fact 


296  LYNCH    V.    MARTIN.  §     I 

that  he  had  been  defrauded  and  cheated  out  of  an  election  to  the 
office  in  question  by  thirty,  or  any  smaller  number  of  illegal  votes 
cast  for  the  respondent,  he  would  not  have  hesitated  to  depose 
such  knowledge,  as  soon  as  called  upon  for  it.  And  the  more 
strongly  are  we  convinced  of  it  by  the  loud  clamor  which  was 
raised  over  this  matter  when  the  board  of  canvassers  met,  and  by 
which  I  regret  to  say  that  nearly  one  half  of  its  members  were 
so  much  excited  and  transported  by  these  charges  and  allegations 
of  fraud  and  illegality,  that  they  were  prepared  in  their  official 
capacity  to  perpetrate  a  more  flagrant  usurpation  upon  the  powers 
of  the  legislature,  and  the  jurisdiction  of  this  court  in  the  premises, 
in  order  to  prevent  the  consummation  of  such  an  apprehended 
fraud,  than  even  the  alleged  usurpation  upon  the  rights  of  the  state 
which  we  are  now  considering  in  the  proceeding  before  us.  For 
their  sole  power  and  duty  when  assembled  as  a  board  of  canvass 
was  purely  ministerial  in  the  premises.  It  simply  was  to  ascertain 
from  the  certificates  of  elections  returned  to  it  by  the  inspectors 
of  election  in  the  hundreds  and  election  districts  of  the  county, 
the  state  of  the  election  throughout  the  county,  by  calculating  or 
adding  up  the  aggregate  amount  of  all  the  votes  which  had  been 
given  for  each  office  in  all  the  hundreds  and  election  districts  in 
the  county,  for  every  person  voted  for  such  office,  and  after  the 
state  of  the  election  throughout  the  county  had  been  thus  ascer- 
tained by  calculating  all  the  votes  as  before  stated,  then  before 
any  adjournment  or  separation  of  the  board,  to  make  under  their 
hands  their  certificates  of  such  election,  as  provided  for  and  required 
of  them  by  the  statute  in  that  behalf.  Rev.  Code  124;  The  People 
V.  Van  Slyck,  4  Cowp.  (K.  B.)  297.  The  statute  does  not  expressly 
provide  or  require,  although  it  manifestly  imports,  we  think,  that 
all  the  members  of  the  board  of  canvass  present  should  concur 
and  unite  in  the  performance  of  this  purely  ministerial  function, 
and  in  the  due  and  proper  discharge  of  the  duty  thus  imposed 
upon  them,  there  certainly  seems  to  be  no  ground  whatever  for 
any  honest  difference  of  opinion  among  the  members  of  it  who  were 
familiar  with  the  first  and  most  simple  rule  in  arithmetic,  and 
possessed  sufficient  intelligence  on  the  subject  to  properly  apprehend 
the  obvious  legal  limit  of  their  official  power  and  authority  in  the 
premises.  But  as  the  dissenting  members  of  the  board  were  so 
clearly  wrong  in  declining  to  join  with  the  majority  of  it  in  the 
certificate  of  the  election  of  the  rcs])ondent  to  the  office  in  question, 
ond  in  the  unlawful  course  which  they  adopted  on  the  occasion, 
il  is  not  entitled  to,  and  of  course,  cannot  have  any  weight  or  effect 
whatever  on  the  decision  of  the  legal  question  now  addressed  to 
the  sfjunci  discretion  of  the  court  in  the  case,  that  is  to  say,  whether 
the  rcsponrlcnt  was  duly  elected  to  the  f)ffice  in  question  at  the 
general  election  held  in  the  county  on  the  7th  day  of  November  last, 


§     I  QUO   WARRANTO,   IN   GENERAL.  297 

and  whether  we  have  sufficient  evidence  to  the  contrary  now  before 
us  to  entitle  the  relator  who  also  claims  it,  to  an  information  in  the 
nature  of  a  writ  of  quo  ivarranto,  to  try  that  question  before  a 
jury  at  the  bar  of  this  court. 

And  here  the  first  and  only  question  v/hich  we  consider  necessary 
to  determine  is  this.  Is  there  sufficient  evidence  before  us  in  the  af- 
fidavits of  the  relator  and  Thomas  Toy,  the  former  wholly  uncorrob- 
orated by  the  latter  in  any  of  its  allegations,  except  as  to  the  illeg-ai 
votes  alleged  to  have  been  cast  for  the  respondent  in  Christiana  north 
election  district,  and  only  in  part  supported  by  it  in  relation  to 
that  district  even,  and  that  to  with  the  material  variance  and  discrep- 
ancy existing  between  them  before  noticed,  and  with  the  latter  affi- 
davit, not  only  wholly  uncorroborated  by  any,  but  is  directly  con- 
tradicted by  all  the  affidavits  filed,  on  behalf  of  the  respondent,  no 
less  than  five  in  number?  To  this  question  we  must  unhesitatingly 
answer  that  there  is  not  sufficient  evidence  to  require  us  in  the  exer- 
cise of  a  sovmd  discretion  with  which  w^e  are  clothed  by  law  on  such 
an  application,  to  grant  the  leave  asked  for  to  file  the  information, 
and  it  is  therefore  denied. 


STATE  EX  INF.  ATTORNEY-GENERAL  v.  EQUITABLE 

LOAN  AND  INVESTMENT  ASSOCIATION  OF 

SEDALIA. 

1897.     Supreme  Court  of  Missouri.     142  Mo.  325,  41  S.  W.  916. 

(Information  filed  by  the  Attorney-General  to  oust  respondent 
from  its  franchises  and  corporate  privileges.  Demurrer  attacking 
the  legal  capacity  of  relator  to  bring  suit.  Only  so  much  of  the  opin- 
ion  as   relates   to  this  point  is   given.) 

Sherwood,  J. — Several  points  are  raised  by  the  demurrer  which 
will  now  receive  consideration ;  and  first  as  to  the  capacity  of  the 
Attorney-General  to  institute  this  proceeding  in  manner  and  form 
as  it  has  been  instituted.  As  to  this  point  it  is  the  settled  law  of 
this  State  that  such  officer  can,  of  his  own  motion  and  without 
leave  of  this  court,  file  an  information  in  qiio  ivarranto,  and  take 
all  other  subsequent  and  necessary  steps  to  have  such  cause  thus 
instituted,  passed  upon  and  determined.  State  ex  inf.  Circuit  At- 
torney V.  Bernoudy,  36  Mo.  279;  State  ex  inf.  Attorney-General  v. 
McAdoo,  36  Mo.  452 ;  State  ex  rel.  v.  Steers,  44  Mo.  223 ;  State 
ex  rel.  v.  Bishop,  ib.  229 ;  State  ex  rel.  v.  Hays,  ib  230 ;  State  ex  rel. 
V.  Vail,  53  Mo.  97;  State  ex  rel.  v.  Townsley,  56  Mo.  107;  State 
ex  rel.  v.  Rose.  84  Mo.  198;  State  ex  rel.  v.  Town  of  Westport,  116 
Mo.  loc.  cif.  605 ;  State  ex  rel.  v.  McMillian,  108  Mo.  153.  See 
also  Short  Mand.  and  Quo.  War.  p.  175 ;  High  Ex.  Leg.  Rem.  (2 


298     att'y-gen'l  v.  equitable  loan  and  investment  ass'n.     §   I 

Ed.)  §  45  and  cases  cited.  This  has  been  the  rule  of  this  state 
ever  since  .jtate  v.  Merry,  3  j\Io.  278. 

At  common  law  ^'the  old  writ  of  quo  zvarranto  is  a  civil  writ,  at  the 
suit  of  the  crown ;  it  is  not  a  criminal  prosecution.  *  *  *  This 
was  the  true  old  way  of  inquiring  of  usurpations  upon  the  crown, 
bv  holding  fairs  or  markets,  viz.,  by  writs  of  quo  zvarranto.  Then 
'-nformations  in  the  nature  of  a  quo  zvarranto  came  into  use  and 
supplied  their  place."  These  observations  fell  from  Mr.  Justice 
Wilmot  in  Rex  v.  Marsden,  3  Burr.  (K.  B.)  1817,  in  the  year 
1765.  See  High  Ex.  Leg.  Rem.  §  603.  In  Blackstone,  written 
in  1758,  some  seven  years  before  the  last  mentioned  period,  it  is 
asserted  that  the  proceeding  by  quo  zvarranto  "is  properly  a  crimi- 
nal method  of  prosecution."  Cooley's  Black.,  bk.  3,  Ch.  17,  p. 
262.  But  whatever  the  original  of  the  writ,  whether  civil  or  crim- 
inal, it  is  certain  now  at  the  present  time  and  for  a  long  period 
anterior  to  this,  it  has  been  and  is  but  a  civil  suit.  There  is  a 
distinction,  of  course,  to  be  taken,  a  distinction  pointed  out  by 
Scott,  J.,  in  State  v.  Ins.  Co.,  8  Mo.  330,  between  a  writ  of  quo 
zvarranto  and  an  information  in  the  nature  of  a  quo  zvarranto,  but 
while  this  is  true,  yet  it  is  also  true,  even  in  Blackstone's  time,  the 
issuance  of  the  writ  itself,  owing  to  its  cumbersome  length,  had 
long  fallen  into  disuse,  which  resulted  in  the  modern  substitutionary 
and  more  speedy  method  of  the  filling  of  ex  officio  informations  by 
the  Attorney-General.    Cooley  Black,  bk.  3,  Ch.  17,  p.  262. 

Our  Constitution  provides  in  the  third  section  of  its  sixth  article 
that  this  court  "shall  have  power  to  issue  writs  of  habeas  corpus, 
quo  zvarranto,  certiorari  and  other  original  remedial  writs,  and  to 
hear  and  determine  the  same."  Inasmuch  as  the  issuance  of  a  writ 
of  quo  zvarranto  had  not  occurred  in  England  for  centuries ;  inas- 
much as  courts,  lawyers  and  text-writers  had  been  accustomed  for 
hundreds  of  years  to  use  the  expression  "writ  of  quo  zvarranto" 
as  the  legal  equivalent  and  synonym  of  "information  in  the  nature 
of  quo  zvarranto"  it  will  be  presumed  that  the  framers  of  our 
('onstitution  were  not  unmindful  or  ignorant  of  such  a  common 
form  of  expression  and  the  meaning  which  it  bore,  and  therefore 
when  they  used  the  words  "writ  of  quo  zvarranto"  they  intended 
thereby  only  to  convey  in  abbreviated  form  the  meaning  that  phrase 
had  for  so  long  a  period  and  so  continuously  been  employed  to 
convey,  to-wit,  "informations  in  the  nature,"  etc. 

Since  writing  the  above  it  has  been  found  that  in  other  states 
possfssing  organic  laws  like  our  own.  similar  conclusions  have 
been  reached.  State  v.  Railroad.  34  Wis.  107  and  cases  cited; 
State  v.  Cilcason,  12  Fla.  100  and  cases  cited;  ITigh  Ex.  Eeg.  Rem. 
8§  ^>io,  61  F. 

And  the  jurisdiction  of  ilic  conrl  in  tliis  regard  1)eing  conferred 
hv   the   Constitution,    it    is   bc\oiul    tlic   iiown-   of   tli(>   legislature   to 


§     I  QUO  WARRANTO,   IN   GENERAL.  299 

take  it  away,  and  it  will  not  be  intended  that  a  legislative  enact- 
ment was  designed  to  take  such  jurisdiction  away,  although  such 
enactment  should  confer  another  and  distinct  remedy  upon  some  in- 
ferior court  or  board.  State  v.  Allen,  5  Kas.  213;  State  v.  Mass- 
more,  14  Wis.  115;  Kane  v.  People,  4  Neb.  509;  19  Am.  &  Eng. 
Ency.  of  Law,  664;  People  v.  Bristol  Co.,  23  Wend.  (N.  Y.)  222; 
People  V.  Hillsdale  Turnp.  Co.,  ib.  254;  State  v.  Baker,  38  Wis. 
yi  ;  High  Ex.  Leg.  Rem.  §  615;  2  Spelling  Ex.  Rel.  §§  1772,  1873. 
In  consequence  of  this  well  recognized  principle,  §§7  and  8  of  the 
laws  of  1895,  pages  31  and  32,  in  relation  to  the  duties  of  the  super- 
visor of  building  and  loan  associations,  to  institute  proceedings  in  the 
circuit  court  against  a  delinquent  building  and  loan  association, 
a«nd  that  such  proceeding  shall  be  conducted  by  the  Attorney-Gen- 
eral, cannot  abate  the  jurisdiction  conferred  on  this  court  by  the 
Constitution  nor  deprive  the  Attorney-General  of  his  common-law 
and  inherent  powers  to  file  ex  officio  informations  as  in  the  present 
instance.  And  it  is  well  enough  to  say  in  concluding  this  paragraph 
of  the  opinion,  that  the  briefs  in  this  cause  are  not  properly  en- 
titled, since  the  Attorney-General  in  such  cases  as  this  is  proceeding 
ex  officio  after  the  manner  of  the  common  law,  and  entirely  inde- 
pendent of  and  above  our  statute  of  quo  ivarranto  which  is  derived 
in  substance  from  9  Anne  c.  20;  Tancred  Quo  Warranto,  pp.  13  and 
14.  So  that  a  relator  or  leave  to  file  information  are  alike  unneces- 
sary to  the  Attorney-General.  And  this  court  has  twice  determined 
that  in  such  informations,  no  relator  is  required.  State  ex  inf.  Cir- 
cuit Attorney  v.  Bernoudy,  36  Mo.  279;  State  ex  rel.  Brown  v. 
McMillian,  108  Mo.  153. 


COMMONWEALTH  ex  rel.  THE  ATTORNEY-GENERAL  v. 

Wx^LTER. 

1876.     Supreme  Court  of  Pennsylvania.     83  Pa.   St.   105. 

Mr.  Justice  Paxson  delivered  the  opinion  of  the  court. 

This  was  a  writ  of  quo  ivarranto  issued  at  the  relation  of  the 
Attorney-General  against  the  defendant,  requiring  him  to  show 
by  what  warrant  he  claims  to  have,  use,  exercise  and  enjov  the 
office  of  high  sherifif  of  Butler  County.  The  information  charges 
that  the  said  defendant  was  a  candidate  for  said  office  in  the 
year  1875 ;  that  he  was  returned  as  elected  at  the  general  election 
held  in  November  of  that  year ;  that  while  the  said  defendant  was 
a  candidate  for  said  office,  he  "was  willfully  and  corruptly  guilty 
of  bribery,  fraud  and  the  willful  violation  of  the  election  laws  of  this 
Commonwealth."  The  information  then  proceeds  to  charge  specific 
acts  of  violation  of  the  election  laws,  and  the  further  offence  of 


300  THE    ATTORNEY-GENERAL    V.    WALTER.  §     I 

perjury  in  taking  the  oath  of  office.  An  answer  was  filed  by  the 
defendant,  in  which  the  charges  set  forth  in  the  information  are 
specifically  denied.  All  this  took  place  on  a  rule  to  show  cause 
why  the  writ  of  quo  zvarranto  should  not  go  out.  The  learned  judge 
of  the  court  below  was  of  the  opinion  that  the  case  was  not  one 
in  which  the  writ  should  issue,  and  discharged  the  rule,  yet  on 
the  request  of  counsel  for  the  Commonwealth  directed  the  writ  to 
be  issued  pro  forma,  and  immediately  quashed  it. 

It  is  proper  to  remark  as  a  matter  of  practice,  that  when  the 
Commonwealth  through  her  attorney-general  applies  for  a  writ 
of  quo  warranto,  she  is  entitled  to  it  without  a  previous  rule  to  show 
cause.  It  is  not  to  be'  presumed  that  the  law  officer  of  the  Com- 
monwealth w^ould  apply  for  this  high  prerogative  writ  for  personal 
or  private  ends.  He  is  supposed  to  be  impartial  and  to  seek  only  the 
vindication  of  the  rights  of  the  state.  It  is  not  so  in  the  case  of  a 
private  relator,  who  is  usually  put  to  his  rule  to  show  cause.  It 
might  not  be  so  where  the  attorney-general  merely  allows  private 
counsel  to  use  his  name,  as  is  sometimes  done  to  procure  the  writ. 
But  when  the  attorney-general  or  his  recognized  deputy  assumes  the 
responsibility  the  writ  should  issue  in  the  first  instance. 

(The  Court  held  that  the  allegation  on  the  part  of  the  Com- 
monwealth of  the  existence  of  certain  facts  which,  if  true,  amount 
to  a  disqualification  of  respondent,  made  this  a  proper  subject 
for  inquiry  in  quo  warranto  and  directed  the  order  of  the  court 
below  quashing  the  writ  to  be  reversed  and  set  aside  and  a  pro- 
cedendo  awarded.) 

See  generally  on  the  subject  of  discretion. — Rex  v.  Parry,  6  A.  &  E. 
8io;  Gunton  v.  Ingle,  4  Cranch  (C.  C. )  438:  State  v.  Centreville  Bridge  Co., 
18  Ala.  678;  Commonwealth  v.  McCartcr,  98  Pa.  St.  607;  Cain  v.  Brown, 
III  Mich.  657;  State  v.  Bruggemann,  53  N.  J.  L.  122:  Stone  v.  Wetmore. 
44  Ga.  495;  People  v,  Boyd,  30  111.  App.  608;  State  v,  Dowlan,  33  Minn. 
536;  State  V.  Stewart,  32  Mo.  379;  State  v.  McNanghton,  56  Vt.  736;  Com- 
monwealth V,  Jones,  12  Pa.  St.  365;  State  v.  Brown.  5  R.  I.  i;  State  v. 
Lehre,  7  Rich.  L.  (S.  Car.)  234;  People  v.  Keeling.  4  Colo.  129;  People 
V.   Sweeting,  2  Johns.    (N.  Y.)    184. 

No  discretion  where  the  attorney-general  files  the  information  ex  officio: 
Rex  V.  Trelawney,  3  Burr.  1615;  People  v.  ITartwell,  12  Mich.  508,  522; 
State  V.  Pennsylvania  &c.,  Co.,  23  Oh.  St.  121 ;  State  v.  Brown,  5  R.  T. 
i;  State  v.  I'Hliott,  13  Utah  200;  State  v.  Town  of  Westport,  116  Mo. 
582;    Commonwealth    v.    Allen,     128    Mass.    308. 


English  statutory  ])rovisions  adopted  in  the  American  common 
law. 

The  fr. Ilowing  statutes  relating  to  quo  warranto  were  in  force 
at  the  time  f)f  the  reception  of  the  luiglish  common  law  in  America 
and  unless  changed  by  specific  statutory  enactment  are  considered 
as  still  in  force  in  so  far  as  they  arc  applicable  to  our  form  of 
govcrnnif-nt  nnrl  institutions. 


§    I  QUO   WARRANTO,   IN   GENERAL.  3OI 

STATUTE    OF    GLOUCESTER. 
6  Edward   I,   Ch.   2,  A.   D.    1278. 

A   statute  of  quo    'juarranto,  made   at   Gloucester,   Anno   6   Edward   I. 

I.  The  year  of  our  Lord  MCCLXXVIII,  the  sixth  year  of  the  reign 
of  King  Edward,  at  Gloucester,  in  the  month  of  August,  the  king  him- 
self providing  for  the  wealth  of  his  realm,  and  the  more  full  adminis- 
tration of  justice,  as  to  the  office  of  a  king  belongeth  (the  more  discreet 
men  of  the  realm,  as  well  of  high  as  of  low  degree,  being  called  thither,) 
it  is  provided  and  ordained,  that  whereas  the  realmi  of  England,  in  divers 
cases,  as  well  upon  liberties  as  otherwise,  wherein  the  law  failed,  to 
avoid  the  grievous  damages  and  innumerable  dishersions  that  the  default 
of  the  law  did  bring  in,  had  need  of  divers  helps  of  new  laws,  and 
certain  new  provisions,  these  provisions,  statutes  and  ordinances  under- 
written shall  from  henceforth  be  straitly  and  inviolably  observed  of  all 
the  inhabitants  of  this  realm.  And  whereas  prelates,  earls,  barons  and 
others  of  our  realm  tliat  claim  to  have  divers  liberties,  which  to  examine 
and  judge,  the  king  hath  prehxed  a  day  to  such  prelates,  earls,  barons 
^nd  others,  it  is  provided  and  likewise  agreed  that  the  said  prelates,  earls, 
barons  and  others  shall  use  such  manner  of  liberties  after  the  form  of 
the    writ    here    following" : 

(IL  Rex  vie'  salutem.  Cum  nuper  in  parliamcnto  nostra  apud  west- 
monasterium,  per  nos  &  concilium  nostrum  provisum  sit  &  proclamatum, 
quod  prclafi,  comites,  barones,  &  alii  de  regno  nostra,  qui  diversas  liber- 
tatcs  per  charias  pragenitorum  nastrarum  regiim  angliae  habere  clamant, 
ad  quas  cxaminandas  &  judicandas  diem  praeRxerimus  in  eadem  par-', 
liaincnto,  libertatibus  illis  talitcr  uterentiir,  quod  nihil  sibi  per  usurpa- 
iioiicm  sen  occupationcm  accrcscerent,  ncc  aliquid  super  nos  accuparent. 
Tibi  precipimus,  quod  omnes  illas  de  coniitatu  tuo  libertatibus  suis,  quibus 
hujusque  rationabiliter  usi  sunt,  uti  &  gandere  permittas  in  forma  prae- 
dieta,  usque  ad  proximum  advcntum  nostrum  per  comitatum  praedictum, 
vel  usque  ad  proximum  adventum  justiciariorum  ifincranfum  ad  omnia 
placita  in  comitafu,  vel  donee  aluid  inde  praeeeperimus-'  salvo  semper 
jure  nostra  cum  inde  loqui  volurimus.     Teste,  etc.) 

in.  In  like  manner,  and  in  the  same  form,  writs  shall  be  directed 
to  sheriffs  and  other  bailiffs  for  every  demandant,  and  the  form  shall  be 
changed  after  the  diversity  of  the  liberty  which  any  man  claimeth  to 
have,   in  this  wise : 

(IV.  Rex  vie'  salutem.  Praecepimus  tibi,  quod  per  totam  ballivam 
tuam  videlicet,  tam  in  civitatibus,  quam  in  burgis  &  aliis  villis  mercatar- 
iis,  &  alibi,  publice  proclamari  facias,  quad  omnes  illi  qui  aliquas  liber- 
tates  per  chartas  pragenitorum  nastrarum  regum  angliae  vel  alia  mado, 
habere  clamant,  sint  coram  justiciariis  nastris  ad  primam  assisam,  cum  in 
partes  illas  venerint,  ad  ostendendum  quomoda  hujusmodi  libertates  habere 
clamant,  &  quo  zvarranta,  &  tu  ipse  sis  ibidem  personalitcr  una  cum  balli- 
vis  &  ministris  ad  certiticandum 'ipsas  jusficiarios  super  his  &  aliis  nego- 
tiis  illud   tangentibus.) 

V.  This  clause  of  liberties,  that  beginneth  in  this  wise,  Precipimus  tibi, 
quod  publice  praclamari  facias,  etc.,  is  put  in  the  writ  of  common  summons 
of  the  justices  in  eyre,  and  shall  have  a  premonition  by  the  space  of  forty 
days,  as  the  common  summons  hath ;  so  that  if  any  party  that  claimeth 
to  have  a  liberty  be  before  the  king,  he  shall  not  be  in  default  before  any 
justices  in  their  circuits ;  for  the  king  of  his  special  grace  hath  granted  that 
he  will  save  that  party  harmless  as  concerning  that  ordinance.  And  if 
the  same  party  be  impleaded  upon  such  manner  of  liberties  before  one  or 
more  of  the  foresaid  justices,  the  same  justices  before  whom  the  party  is 
impleaded  shall  save  him  harmless  before  the  other  justices,  and  so  shall 
the  king  also  before  him,  when  it  shall   appear  by  the  justices  that  so  it 


J02  STATUTE   OF    GLOLXESTER.  §    I 

was  in  plea  before  them  as  is  aforesaid.  And  if  the  aforesaid  party  be 
afore  the  king,  so  that  he  cannot  be  the  same  day  afore  the  justices  m 
their  circuits,  the  king  shall  save  that  partv  harmless  before  the  foresaid 
justices  in  their  circuits  for  the  day  whereas  he  was  before  the  king. 
And  if  he  do  not  come  in  at  the  same  da^',  then  those  liberties  shall  be 
taken  into  the  king's  hands  in  name  of  distress,  by  the  sheriff  of  the  place, 
so  that  they  shall  not  use  them  until  they  come  to  answer  before  the 
justices ;  and  when  they  do  come  in  by  distress,  their  liberties  shall  be 
replevised  (if  they  demand  them),  in  the  which  replevins  they  shall  answer 
immediately  after  the  form  of  the  writ  aforesaid ;  and  if  percase  they  will 
challenge,  and  say  they  are  not  bounden  to  answer  thereunto  without  an 
original  writ,  then  if  it  may  appear  by  any  mean  that  they  have  usurped 
or  occupied  any  liberties  upon  the  king,  or  his  predecessors,  of  their  own 
head  or  presumption,  they  shall  be  commanded  to  answer  incontinent  with- 
out writ,  and  moreover  they  shall  have  such  judgment  as  the  court  of 
our  lord  the  king  will  award ;  and  if  they  will  say  further  that  their 
ancestors  died  seized  thereof,  they  shall  be  heard,  and  the  truth  shall  be 
inquired  incontinent,  and  according  to  that  judgment  shall  be  given ; 
and  if  it  appear  that  their  ancestors  died  seized  thereof,  then  the  king 
shall  award  an  original  out  of  the  chancery  in  this  form :  (Rex  2-'ir' 
sahttcm.  Sum'  per  bonos  summon'  talem,  quod  sit  coram  nobis  apud 
talcm  locum  in  proximo  advcntu  nostro  in  com'  pracdict'  vel  coram  justici- 
ariis  nosfris  ad  proximan  assisam,  cum  in  partes  illas  venerint,  ostcjtsurus 
quo  warranto  tenet  visum  francipleg'  in  manerio  suo  de  N.  vel  sic,  quo 
warranto  tenet  hundredum  de  S.  in  com'  pracdict' ;  vel  quo  warranto 
clamat  habere  thclonium  pro  se  &  haeredibus  suis  per  totiim  regniim 
nostrum;  &  habeas  ibi  hoc  breve.  Teste,  etc.)  And  if  thev  come  in  at 
the  same  day,  they  shall  answer,  and  replication  and  rejoinder  shall  be 
made;  and  if  they  do  not  come,  nor  be  essoined  before  the  king,  and  the 
king  do  tarry  longer  in  the  same  shire,  the  sheriff  shall  be  commanded 
to  cause  them  to  appear  the  fourth  day;  at  which  day,  if  they  come  not. 
and  the  king  be  in  the  same  shire,  such  order  shall  be  taken  as  in  the 
circuit  of  justices ;  and  if  the  king  depart  from  the  same  shire,  they 
shall  be  adjourned  unto  short  days,  and  shall  have  reasonable  delays 
according  to  the  discretion  of  the  justices,  as  it  is  used  in  personal  actions. 
Also  the  justices  in  eyre  in  their  circuits  shall  do  according  to  the  fore- 
said ordinance,  and  according  as  sucli  manner  of  pleas  ought  to  be  ordered 
in  the  circuit.  Concerning  complaints  made  and  to  be  made  of  the  king's 
bailiffs,  and  of  others,  it  shall  be  done  according  to  the  ordinance  made 
before  thereupon,  and  according  to  the  inquests  taken  thereupon  here- 
tofore; and  the  clause  subscribed  shall  be  put  in  a  writ  of  common 
summons  in  the  circuit  of  the  justices  assigned  to  common  pleas  directed 
to  the  sheriff,  etc..  and  that  shall  be  such:  (Rex  vie'  sahitem.  Praccipi- 
mus  tihi,  quod  publicc  proclarnari  faria<:,  qund  nmiies  coiiquerentes,  seu 
couqneri  volentes,  tarn  de  ministris  &  aliis  ballivis  nostris  quihuscunque. 
quam  de  ministris  &  ballivis  aliorum  quoniincuuque,  &  aliis,  veniaiit  coram 
justiriariis  nostris  ad  primam  assisayn,  ad  quascunque  qucrimonias  suas  ibidem 
osleudendas,  &  competentes  emedas  inde  recipicndas  secundum  legem  &  con- 
surtudinem  regni  nostri,  &  ju.vta  ordinationem  per  nos  inde  factani,  &  juxta 
trtwrrm  sfatutorum  nostrorum,  &  juxta  articulos  iisdem  justiciariis  nostri.'; 
inde  Iraditos,  proxit  praedicti  jusficinrii  tibi  scire  facianf  e.v  parte  nostra. 
Teste  meipso,  etc.,  dccimo  die  decembris,  anno  rcgni  nostris,  etc.) 


§     I  QUO   WARRANTO,    IN   TFNERAL.  3O3 

STATUTE    DE    QUO    WARRANTO    NOVUM. 
18  Edward   1.   St.  2,  A.   D.   1290. 

I.  Forasmuch  as  writs  of  quo  zvarranto,  and  also  judgments  given  upon 
pleas  of  the  same,  were  greatly  delayed,  because  the  justices  in  giving 
judgment,  were  not  certilied  of  the  king's  pleasure  therein ;  our  lord,  the 
king,  at  his  parliament  holden  at  Westminster,  after  the  feast  of  Easter, 
the  eighteenth  year  of  his  reign,  of  his  special  grace,  and  for  the  affection 
that  he  beareth  unto  his  prelates,  earls  and  barons,  and  others  of  his 
realm,  hath  granted,  that  all  under  his  allegiance,  whatsoever  they  be,  as 
well  spiritual  as  other,  which  can  verify  by  good  enquest  of  the  country, 
or  otherwise,  that  they  and  their  ancestors  or  predecessors  have  used 
any  manner  of  liberties,  whereof  they  were  impleaded  by  the  said  writs, 
before  the  time  of  King  Richard,  our  cousin,  or  in  all  his  time,  and  have 
continued  hitherto  (so  that  they  have  not  misused  such  liberties),  that 
the  parties  shall  be  adjourned  further  unto  a  certain  day  reasonable  before 
the  same  justices,  within  the  which  they  may  go  to  our  lord,  the  king, 
with  the  record  of  the  justices,  signed  with  their  seal,  and  also  return; 
and  our  lord,  the  king,  by  his  letters  patents,  shall  confirm  their  estate. 
And  they  that  cannot  prove  the  s  isin  of  their  ancestors  or  predecessors 
in  such  manner  as  is  before  declared,  shall  be  ordered  and  judged  after 
the  law  and  custom  of  the  realm ;  and  such  as  have  the  king!s  charter 
shall    be   judged   according   to   their   charters. 

II.  Moreover,  the  king  of  his  special  grace  hath  granted,  that  all  judg- 
ments that  are  to  be  given  in  pleas  of  quo  warranto,  by  his  justices  at 
Westminster,  after  the  foresaid  Easter,  for  our  lord  the  king,  himself, 
if  the  parties  grieved  will  come  again  before  the  king,  he  of  his  grace  shall 
give  them  such  remedy  as  before  is  mentioned.  Also,  our  said  lord  the 
king,  hath  granted,  for  sparing  of  the  costs  and  expenses  of  the  people 
of  his  realm,  that  pleas  of  quo  zvarranto  from  henceforth  shall  be  pleaded 
and  determined  in  the  circuit  of  the  justices,  and  that  all  pleas  now 
depending  shall  be  adjourned  into  their  own  shires,  until  the  coming  of 
the   justices   into   those   parts. 


STATUTE   OF   ANNE. 

9   Anne,   ch.   20,   A.    D.    1710. 

IV.  And  be  it  further  enacted  by  the  authority  aforesaid,  that  from 
and  after  the  first  day  of  Trinity  term,  in  case  any  person  or  persons 
shall  usurp,  intrude  into,  or  unlawfully  hold  and  execute  any  of  the  said 
ofifices  or  franchises,  it  shall  and  may  be  lawful  to,  and  for  the  proper 
officer  in  each  of  the  said  respective  courts,  with  the  leave  of  the  said 
courts  respectively,  to  exhibit  one  or  more  information  or  informations 
in  the  nature  of  a  quo  zvarranto,  at  the  relation  of  any  person  or  persons 
desiring  to  sue  or  prosecute  the  same,  and  who  shall  be  mentioned  in 
such  information  or  informations  to  be  the  relator  or  relators  against 
such  person  or  persons  so  usurping,  intruding  into,  or  unlawfully  holding 
and  executing  any  of  the  said  offices  or  franchises,  and  to  proceed  therein  in 
such  manner  as  is  usual  Jn  cases  of  information  in  the  nature  of  quo  ivar- 
ranto;  and  if  it  shall  appear  to  the  said  respective  courts,  that  the  several 
rights  of  divers  persons  to  the  said  offices  or  franchises  may  properly  be  de- 
termined on  one  information,  it  shall  and  may  be  lawful  for  the  said 
respective  courts  to  give  leave  to  exhibit  one  such  information  against 
several  persons,  in  order  to  try  their  respective  rights  to  such  offices  or 
franchises,  and  such  person  or  persons  against  whom  such  information 
or    informations    in    the    nature    of    quo    warranto    shall    he    sued    or    prose- 


304  STATUTE   OF    ANNE.  §    I 

cuted,  shall  appear  and  plead  as  of  the  same  term  or  sessions  in  which 
the  said  information  or  informations  shall  be  filed,  unless  the  court 
where  such  information  shall  be  filed  shall  give  further  time  to  such 
person  or  persons  against  whom  such  information  or  informations  shall  be 
exhibited  to  plead;  and  such  person  or  persons  who  shall  sue  or  prosecute 
such  information  or  informations  in  the  nature  of  quo  warranto  shall 
proceed  thereupon  with  the  most  convenient  speed  that  may  be;  any 
law    or   usage   to   the   contrary   thereof    in   anywise    notwithstanding. 

V.  And  be  it  further  enacted  and  declared  by  the  authority  aforesaid, 
that  from  and  after  the  first  c'ay  of  Trinity  term,  in  case  any  person  or 
persons  against  whom  any  information  or  informations  in  the  nature  of 
quo  warranto  shall  in  any  of  the  said  cases  be  exhibited  in  any  of  the 
said  courts,  shall  be  found  or  adjudged  guilty  of  an  usurpation,  or 
intrusion  into,  or  unlawfully  holding  or  executing  any  of  the  said  offices 
or  franchises,  it  shall  and  may  be  lawful  to  and  for  the  said  courts 
respectively  as  well  to  give  judgment  6i  ouster  against  such  person  or 
persons,  of  and  from  any  of  the  said  offices  or  franchises,  as  to  fine  such 
person  or  persons  respectively,  for  his  or  their  usurping,  intruding  into, 
or  unlawfully  holding  and  executing  any  of  the  said  offices  or  franchises; 
and  also  it  shall  and  may  be  lawful  to  and  for  the  said  courts 
respectively  to  give  judgment  that  the  rela*-or  or  relators,  in  such  infor- 
mation named,  shall  recover  his  or  their  costs  of  such  prosecution ;  and 
if  judgment  shall  be  given  for  defendant  or  defendants  in  such  information 
he  or  they  for  whom  such  judgment  shall  be  given  shall  recover  his  or  their 
costs  therein  expended  against  such  relator  or  relators ;  such  costs  to  be 
levied   in   manner   aforesaid. 

VI.  And  be  it  further  enacted  and  declared  by  the  authority  afore- 
said, that  it  shall  and  may  be  lawful  to  and  for  the  said  courts  respec- 
tively to  allow  such  person  or  persons  respectively,  to  whom  any  writ  of 
mandamus  shall  be  directed,  or  against  whom  any  information  in  the 
nature  of  quo  zvarranto,  in  any  of  the  cases  aforesaid,  shall  be  sued  or 
prosecuted,  or  to  the  person  or  persons  who  shall  sue  or  prosecute  the  same, 
such  convenient  time  respectively,  to  make  a  return,  plead,  reply,  rejoin 
or  demur,  as  to  the  said  courts  respectively  shall  seem  just  and  reasonable; 
anything  herein  contained  to  the  contrary  thereof  in  anywise  notwith- 
standing. 

VII.  And  be  it  further  enacted  by  the  authority  aforesaid,  that  after 
the  said  first  day  of  Trinity  term,  an  act  made  in  the  fourth  year  of  her 
majesty's  reign,  entitled  "An  act  for  the  amendment  of  the  law,  and  the 
better  advancement  of  justice"  and  all  the  statutes  of  jeofayles,  shall  be 
extended  to  all  writs  of  mandamus  and  informations  in  the_  nature  of 
quo  warranto,  and  proceedings  thereon,  for  any  the  matters  in  this  act 
mentioned. 


§    2      AGAINST  MUNICIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      305 

Section  2. — Against  Municipal  Corporations  and  Public  Officers. 
I.     Origin  and  early  uses  of  the  writ  as  against  municipalities. 

"On  the  Restoration,  Charles  II,  found  the  principal  opposition 
to  the  court  to  come  from  the  cities  and  boroughs.  He  commenced 
his  reign  by  reconstructing  the  (municipal)  corporations  and  filling 
them  with  his  own  creatures.  Judges,  also  creatures  of  the  king, 
holding  commissions  during  his  pleasure,  aided  him  in  his  scheme  to 
acquire  absolute  control  over  the  corporations  of  the  realm.  London, 
as  the  largest  and  most  influential,  was  selected  as  an  example, 
and  in  1683,  the  famous  quo  warranto  was  issued  against  the  city 
to  deprive  it  of  its  charter,  for  two  alleged  violations,  one  of 
which  was  stale  and  both  were  frivolous.  Judgment  passed,  of 
course  against  the  city,  and  its  ancient  charter  was  abrogated.  As 
a  condition  of  its  restoration,  it  was,  among  other  things,  provided 
that  thereafter  the  mayor,  sheriff,  clerk,  etc.,  should  not  exercise 
their  office  without  the  king's  consent ;  and  that  if  the  king  twice 
disapproved  of  the  officers  elected  by  the  corporation,  he  might 
himself  appoint  others.  In  short,  the  city  was  deprived  of  the 
right  of  choosing  its  own  officers,  and  was  made  dependent  upon 
the  crown.  Such  also  was  the  fate  of  most  of  the  considerable 
(municipal)  corporations  of  England.  The  whole  power  was  in 
the  hands  of  the  king." 

"Nor  were  these  arbitrary  proceedings  confined  to  England.  In 
1683,  writs  of  quo  warranto  and  scire  facias  were  issued  for  the 
purpose  of  abrogating  the  charter  of  Massachusetts.  Patriotism 
and  religion  mingled  their  fervors  and  combined  in  its  defence, 
but  in  vain.  Servile  judges  in  June  1684,  one  year  and  six  days 
after  the  judgment  against  the  city  of  LondoUj  adjudged  the  charter 
to  be  conditionally  forfeited.  The  charter  government  was  dis- 
placed, and  popular  representation  superseded  by  an  arbitrary  com- 
mission. In  1687  similar  writs  were  issued  against  the  charters 
of  Rhode  Island  and  Connecticut ;  when,  as  is  well  known,  the  people 
of  the  latter  colony  unsuccessfully  endeavored  to  preserve  this  cher- 
ished muniment  of  their  liberties  by  concealing  it  in  the  "charter- 
oak."  The  colonies  as  a  result  of  the  English  revolution  of  1688, 
had  their  charters  restored.  Very  shortly  after  the  accession  of 
William  and  Mary  a  bill  to  restore  the  rights  of  those  English  cor- 
porations which  had  surrendered  their  charters  to  the  crown  during 
the  reigns  of  James  II  and  Charles  II,  was  introduced  into  par- 
liament, and  became  a  law  with  the  general  applause  of  men  of  all 
parties."     i  Dillon  Mun.  Corp.,  §  8  ff. 

(During  the  reigns  of  James  II  and  Charles  II  no  less  than 
eighty-one  quo  warranto  informations  were  brought  against  munici- 
pal corporations  in  England.) 


306  COMMONWEALTH  V.  CITY  OF  PITTSBURGH.  §    2 

"In  no  instance  known  to  the  author  have  the  courts  of  this 
country  declared  forfeited  the  charter  or  franchises  of  a  municipal 
corporation  for  the  acts  or  misconduct  of  its  agents  or  officers. 
That  this  was  done  by  the  English  courts  prior  to  the  revolution  of 
1688  is  well  known.  The  case  of  the  city  of  London  is  the  most 
conspicuous  historical  example.  It  is  believed  by  the  author  that 
such  a  remedy  is  not  applicalDle  to  our  corporations,  created,  as  they 
are,  by  statute,  for  the  benefit,  not  of  the  officers  or  a  few  per- 
sons, but  of  the  whole  body  of  the  inhabitants  residing  therein, 
and  the  public.  If  the  officers  usurp  rights  which  belong  to  the 
state,  the  law,  by  quo  warranto,  by  injimction,  by  action,  by  de- 
claring their  acts  void,  and  in  other  ways,  can  correct  the  usurpation, 
and  should  do  it  without  forfeiting  the  rights  and  franchises  of  the 
citizens,  Avho  are  blameless."     2  Dillon  Mun.  Corp.,  §  896. 


COMMONWEALTH   v.   CITY   OF   PITTSBURGH. 
1850.     Supreme  Court  of  Pennsylvania.     14  Pa.  St.   177. 

The  opinion  of  the  court  was  delivered  by 

Coulter,  J. — The  attorney  general  is  required  by  the  3d  section 
of  the  act  in  relation  to  writs  of  qno  warranto,  passed  i6th  of  June, 
1836,  whenever  he  shall  believe  that  any  corporation  has  forfeited 
its  corporate  rights,  privileges  or  franchises,  to  file  a  suggestion 
and  to  proceed  to  the  determination  of  the  matter,  and  in  pursuance 
of  his  power  he  has  filed  this  suggestion  against  the  corporation  of 
the  Mayor,  Aldermen  and  citizens  of  Pittsburgh ;  and  alleges  that 
by  the  ordinances  of  the  council  which  repealed  a  certain  prior  or- 
dinance passed  in  1831,  vesting  in  the  mayor  the  appointment  of  the 
night  watch  and  patrol ;  also  by  vesting  the  appointment  of  said 
watch  in  a  committee  of  councils,  and  finally  by  the  appointment 
of  the  night  watch  by  the  councils  themselves ;  the  said  corporation 
has  claimed  to  use,  and  has  used  unlawfully,  liberties  and  fran- 
chises not  belonging  to  it ;  and  all  of  which  privileges  the  said 
corporation  has  usurped  against  the  commonwealth,  etc ;  and  a  rule 
was  granted  at  his  instance,  against  the  corporation,  to  show  cause 
why  a  writ  of  qno  zvarranto  should  not  issue  against  the  said 
corporation,  commanding  them  to  a]ipcar  and  show  by  what  cause 
and  authority  they  exercised  such  privileges  and  franchises.  The 
corjjoration  appeared  at  the  return  of  the  rule,  and  was  heard  by 
her  attorneys,  and  the  commonwealth  was  heard  by  the  representa- 
tive of  the  attorney  general. 

The  corporation,  even  admitting  all  the  allegations  in  the  sug- 
gestion, has  not  usurped  from  the  commonwealth  any  liberty,  fran- 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND  PURLIC  OFFICERS.      307 

chise  or  privilege ;  nor  has  she  by  anything  or  act,  shown  to  this 
court,  invaded  the  rights  or  privileges  of  any  other  corporation,  nor 
die  rights  or  privileges  of  any  other  corporation,  nor  the  rights 
or  privileges  of  the  people  at  large.  She  has  used  no  right  or 
franchise  that  did  not  belong  to  the  corporation.  It  has  done  noth- 
ing more  than  use  privileges  and  franchises,  unquestionably  belong- 
ing to  the  corporation,  and  incident  to  the  emergencies  and  re- 
quirements of  its  beneficial  existence,  to-wit: — the  appointment  of 
a  night  watch.  That  the  corporation  possessed  this  power  will 
hardly  be  questioned  by  any  reasonable  man.  That  two  of  the 
functionaries,  the  legislative  department,  the  councils,  and  the  exec- 
utive department,  the  mayor,  have  disputed  about  their  respective 
powers  in  the  matter,  is  admitted.  But  the  charter  was  not  granted 
for  the  benefit  of  the  mayor  or  the  councils  cither,  but  for  the  bene- 
fit of  the  people  of  the  great  m-unici polity .  The  law  has  abundant 
means  and  power  of  settling  this  dispute  between  the  functionaries, 
without  detriment  to  the  people  or  corporation.  Then  why  should 
the  people  be  punished  for  the  wrangling  of  the  officers. 

The  charter  is  the  charter  of  the  people,  and  shall  they  be  pun- 
ished by  wresting  it  from  them,  and  throwing  their  whole  con- 
cerns into  confusion  and  disorder,  because  the  mayor  and  the 
council  dispute?  The  municipality  of  the  city  government  has 
been  built  up  and  perfected  through  a  course  of  many  years^  and 
by  many  acts  of  assembly :  and  by  many  by-laws  and  ordinances, 
as  were  suggested  by  experience  and  time.  And  shall  all  this  fair 
fabric,  on  which  lie  so  many  duties  and  obligations,  on  which  most 
of  the  welfare  and  security  of  the  citizens  of  a  great  community 
depend,  be  torn  down,  and  be  destroyed  by  the  turbulence  of  any 
officer  or  officers?  A  case  has  been  cited  from  the  reign  of  the 
Stuarts  in  England,  as  authority  and  precedent,  in  the  instance  of  the , 
forfeiture  of  the  charter  of  London,  for  irregularity  in  passing  some 
ordinance.  But  it  must  be  recollected  that  the  object  and  policy 
of  the  royal  government  at  that  time,  was  to  circumvent  the  lib- 
erties of  the  people,  and  one  means  of  doing  that  was  to  forfeit 
the  franchises  of  corporations,  through  the  instrumentality  of  pliant 
judges,  who  then  held  the  office  at  his  w'ill,  to  the  use  of  the  king, 
who  granted  them  out  to  his  creatures  upon  principles  less  favorable 
to  liberty.  But  after  the  revolution  of  1768,  when  that  race  was 
driven  from  the  throne,  the  parliament  reversed  this  decision  or 
judgment,  and  enacted  that  thereafter,  the  franchises  of  the  citv 
should  not  be  forfeited  for  any  cause  by  the  courts.  And  why  should 
the  franchise  of  any  municipal  government  be  forfeited  on  account 
of  the  misconduct,  alleged  or  real,  of  its  officers?  The  usurpation 
of  officers  can  be  corrected  by  suitable  means,  leaving  untouched  the 
rights,  franchises,  and  liberties  of  the  citizens  and  corporators. 

If  the  mavor.  who  we  must  believe  from  the  force  of  the  sus:- 


308  STATE   V.    VILLAGE   OF    BRADFORD,  §    2 

gestion,  is  the  real  complainant,  had  filed  a  suggestion  against  the 
council  for  usurping  his  functions,  this  court  could,  under  the 
eighth  section  of  the  act  relating  to  writs  of  quo  warranto,  have 
made  him,  although  the  relator,  a  party  respondent  also,  and  then 
determined  on  his  rights  and  authority  as  well  as  on  those  of  the 
councils ;  and  could  have  pronounced  judgment  of  ouster  against 
whoever  was  in  the  wrong;  and  in  such  case,  by  the  15th  section 
of  the  act  of  April  13,  1850,  being  a  supplement  to  the  act  relating 
to  Orphan's  courts,  this  court  could  have  appointed  trustees  from 
among  the  citizens  eligible  to  office  in  the  corporation,  as  trustees  to 
take  charge  of  the  corporation  until  new  officers  were  chosen  ac- 
cording to  the  provisions  of  the  charter. 

But  in  this  proceeding  we  could  pronounce  no  judgment  except 
forfeiture  of  franchises  and  of  the  charter,  against  the  corporation, 
which  would  dissolve  it  and  return  it  to  its  original  elements.  We 
cannot  think  of  such  a  result ;  there  is  not  the  slightest  cause  for 
it.  The  proceeding  has  worn  a  grotesque  appearance,  in  my  judg- 
ment, from  the  beginning.     The  rule  is  therefore  discharged. 

Rule  discharged. 


STATE  v.  VILLAGE  OF  BRADFORD  et  al. 
1859.     Supreme    Court   of    Vermont.     32    Vt.    50. 

Redfieli),  Ch.  J. — This  is  a  motion  and  summons  against  the 
defendants,  wherein  the  state's  attorney,  as  the  representative  of  the 
sovereignty  of  the  state,  asks  leave  to  file  an  information  against 
the  nominal  and  de  facto  corporation  of  the  village  of  Bradford  for 
having  usurped  the  prerogatives  and  franchises  of  a  municipal  cor- 
poration within  the  state,  without  the  grant  or  the  permission  of 
the  state ;  anrl  against  the  other  defendants  for  having  unlawfully 
and  without  pro])er  warrant,  presumed  to  hold  and  exercise  the  offi- 
ces of  such  usurping  corporation. 

The  cor])oration  make  no  answer  or  defence  in  form,  except  to 
put  the  prosecutor  on  proof  of  the  allegations  contained  in  the 
information.  We  are  satisfied  from  the  evidence  in  the  case,  that 
there  could  not  have  been  a  legal  majority  of  the  voters  present 
at  the  meeting  in  favor  of  accepting  the  charter,  and  that  it  did 
not  thereby  become  a  binding  law.  The  organization  therefore  un- 
der it  is  a  mere  usurpation  of  corporate  franchises,  without  any  legal 
warrant. 

In  such  cases,  the  law  is  well  settled,  in  F.ngland.  that  upon  the 
information  of  the  attorney  general  the  court  of  King's  Bench 
will  abate  and  dissolve  the  corporation,  whether  it  be  a  private  or 
a  public  one.      When  a  corporation  is  of  a  public  character,   like 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND   PUBLIC  OFFICERS.       3O9 

a  town  or  a  village,  which  constitute  integral  portions  of  the  sover- 
eignty itself,  there  is  more  propriety  in  visiting  the  usurpation  of 
these  important  functions  of  sovereignty,  with  this  formal  denial 
of  their  right  to  exercise  such  usurpation,  than  in  the  case  of  a  mere 
private  corporation,  but  the  law  seems  to  be  the  same  in  either 
case. 

It  is  only  the  sovereign  power  of  the  state  zvhich  ean  create 
corporate  franchises,  and  all  zvho  presume  to  exercise  them  zvithont 
the  consent  of  such  authority  are  liable  to  this  mode  of  procedure. 

We  think  there  can  be  no  question  that  the  corporation  de  facto 
should  be  dissolved. 

And  in  regard  to  the  other  defendants  it  seems  that  they  now 
disclaim  any  purpose  of  exercising  the  functions  of  the  offices 
to  which  they  were  elected,  and  of  which  election  a  formal  record 
was  made,  and  which  has  been  certified  in  this  case  by  one  of  the 
defendants,  as  secretary  of  the  usurping  corporation.  All  that  is 
requisite  in  regard  to  them  will  be  effected  by  a  judgment  against  the 
corporation,  perhaps,  but  we  see  no  reason  why  a  judgment  of  ouster 
should  not  be  formally  entered  against  them.  If  the  title  to  a 
corporate  office  is  only  defective  from  an  irregular  swearing  in, 
the  judgment  against  the  party  is  only  for  a  fine  for  the  temporary 
usurpation,  and  that  he  do  not  exercise  the  office  until  sworn  in. 
Rex  V.  Clarke,  2  East  (K.  B.)  75  ;  9  East  (K.  B.)  246  ct  seq.  Judg- 
ment of  seizure  of  the  franchises  to  the  use  of  the  king  may  be  given 
against  a  corporation  upon  a  disclaimer  and  this  will  ])reclude  the 
party  from  afterwards  setting  up  the  same  title.  S.  C.  and  Rex 
V.  Mayor,  3  B.  &  A.  (K.  B.)  590;  Rex  v.  Chester,  2  Show.  ( K.  B.) 
365 ;  on  a  nil  dicit  to  a  gwo  zi'arranto  information,  the  judgment  is 
quod  capiatur ;  Rex  v.  Tyrrill,  11  Mod.  Rep.  (K.  B.)  235.  Where 
the  franchises  are  usurped  the  judgment  is  qxiod  extinguantnr. 
Smith's  case,  4  Mod.  Rep.  (K.  B.)  54,  56.  Judgment  was  given  in 
quo  zvarranto  against  the  city  of  London,  that  the  liberties  thereof 
being  seized  into  the  king's  hands,  did  not  dissolve  the  corporation 
or  remove  the  officers  from  their  corporate  offices.  But  where  the 
corporation  is  intended  to  be  dissolved,  judgment  to  that  efifect  should 
be  formally  entered.  Sir  James  Smith's  case,  4  Mod.  Rep.  (K.  B.) 
52 ;  14  PetersdorfT  iii  Note. 

Judgment  that  the  state's  attorney  be  allowed  to  file  his  informa- 
tion;  and  therefore  the  court  do  adjudge  that  the  facts  therein  set 
forth  are  true,  and  that  the  said  pretended  corporation  of  the  village 
of  Bradford  be.  and  the  same  hereby  is.  dissolved,  and  that  the  other 
defendants  no  longer  exercise  any  of  the  functions  pertaining  to  said 
offices,  but  that  no  costs  be  taxed  against  any  of  the  defendants. 

Quo  tvarranto  is  the  proper  remedy  to  determine  the  question  of  the 
lesal  existence  of  a  municiaplitv. — Territory  v.  Armstrong:,  6  Dak.  226; 
Whalin  v.  City  of  Macomb.  76  111.  49 ;  Mullikin  v.  City  of  Bloomington,  72 


310  STATE   V.    LEATIIERMAN    ET   AL.  §    2 

Ind.  i6i ;  Brennan  v.  City  of  Wcathcrford,  53  Tex.  330;  People  v.  Gart- 
land,  75  Mich.  143.  But  see  State  v.  Board  of  Education,  7  Oh.  Cir.  Ct. 
152;  Kayser  v.  Trustees,  etc.,  16  Mo.  88;  People  v.  Grand  Co.  Com'rs,  6 
Colo.  202. 


2.     Acquiescence  or  continued  recognition  may  bar  the  writ. 
STATE  V.  LEATHERMAN  et  al. 
1881.     Supreme  Court  of  Arkansas.     38  Ark.  81. 

Eakin,  J. — This  case  invokes  the  original  jurisdiction  of  this , 
court,  in  one  of  the  cases  provided  for,  by  the  fifth  section  of  Article 
VII  of  the  Constitution.  It  is  an  application  by  the  attorney  general 
in  the  nature  of  an  information  on  behalf  of  the  state  against  the 
mayor,  aldermen  and  recorder  of  the  town  of  "Arkansas  City"  to 
test  the  legal  existence  of  the  city  as  a  corporation ;  substantially 
it  is  an  application  for  a  writ  of  quo  zvarranto.  Notwithstanding 
some  earlier  decisions  to  the  contrary,  it  had  long  before  the  adop- 
tion of  the  constitution  of  1874,  been  the  practice  of  this  court  to  dis- 
regard the  distinction  between  the  old  writ  of  quo  warranto  and 
the  information  in  the  nature  of  it ;  and  the  constitution  in  giving 
this  court  the  povk^er  to  issue  the  writ  of  quo  zvarranto  to  test  the 
legal  existence  of  municipal  corporations,  may  be  held,  in  view 
of  the  settled  practice,  to  mean  and  include  informations  for  pub- 
lic purposes  in  the  nature  of  the  writ,  as  well  as  the  old  writ 
itself. 

The  language  of  our  constitution  relieves  us  of  the  necessity  of 
deciding  a  point  of  practice  which  has  been  elsewhere  a  matter  of 
some  embarrassment ;  that  is,  whether  the  suit  should  be  against 
the  corporation  itself,  co  nomine,  or  may  be  against  its  officers. 
It  is  that  this  court  may  issue  the  writ  to  officers  of  political  corpora- 
tions, "when  the  question  involved  is  the  legal  existence  of  such 
corporations,"  thus  not  only  giving  the  jurisdiction,  but  prescribing 
its  limits,  and  the  proper  parties. 

The  cause  is  sul)mitted  on  demurrer  to  the  answer.  The  only 
question  presented  by  the  pleadings  is,  whether  the  town  of  "Ar- 
kansas City"  can  be  recognized  as  an  existing  corporation.  The 
material  facts  disclosed  by  the  admissions  to  the  answer  are :  that 
an  attempt  was  made  to  organize  the  town  as  a  corporation,  upon 
apj)lication  to  the  circuit  court  of  Chicot  county,  and  by  virtue  of 
an  order  thereof,  made  on  the  12th  day  of  September,  1873.  It  is 
conceded  save  as  to  the  tribunal,  that  the  organization  was  cfifected, 
substantially,  in  accordance  with  the  general  incorporation  act  then 
in  force.  It  further  appears  that  from  that  time  until  the  commence- 
mctit  of  this  suit  the  town  had  continuously  exercised  the  powers  and 


§    2      AGAINST   MUNICIPAL  CORPORATION'S  AND  PUBLIC  OFFICERS.      3II 

franchises  of  a  corporation,  electing  officers  of-  whom  the  mayors 
successively  elected  had  been  commissioned  by  the  governor,  and  the 
others  had  been  duly  qualified ;  passing  and  enforcing  ordinances, 
collecting  fines,  making  public  improvements,  entering  into  contracts 
for  the  public  benefit ;  levying  taxes,  which  from  time  to  time, 
had  been  regularly  extended  on  the  tax  books,  and  placed  in  the 
hands  of  the  county  collector,  and  that  for  delinquencies  for  the 
payment  of  such  taxes,  lands  had  been  sold  and  titles  had  become 
involved. 

Other  matters  of  like  nature  tending  to  show  the  inconvenience 
and  embarrassment  of  now  holding  the  corporation  void  ab  initio 
are  now  urged ;  and  it  is  also  shown  that  the  territory  of  the  town 
is  upon  the  Mississippi  River  and  the  common  terminus  of  two  rail- 
roads from  the  interior;  that  it  has  a  population  of  from  one  to 
two  thousand  inhabitants,  that  many  strangers  are  continually  pass- 
ing and  that  it  requires  a  local  police  for  the  protection  of  the 
property,  and  the  security  of  the  peace.  Further  that  the  ground 
had  been  platted  into  blocks,  lots,  alleys,  streets,  parks,  etc.,  which 
plat  had  been  recorded  and  sales  and  transfers  had  been  made  with 
reference  thereto. 

It  will  be  seen  that  two  points  only  are  presented ;  ist.  Was  the 
corporation  organized  in  accordance  with  law  so  as  to  acquire 
thereby  a  valid  existence ;  and,  2d,  if  not,  has  the  acquiescence 
of  the  state  for  so  long  a  period  so  affected  her  right  to  now  ques- 
tion the  franchise  as  to  leave  it  within  the  power  of  this  court 
in  the  exercise  of  a  sound  discretion  to  refuse  a  relief  fraught 
with  consequences  so  disastrous  to  the  long  line  of  officers,  and 
list  of  contractors  and  purchasers  of  property,  who  have  been  acting 
bona  Ude  and  in  obedience  to  and  in  accordance  with  what  they 
supposed  to  be  a  legitimate  governing  body?  It  goes  without  say- 
ing, that  if  this  court  can  find  this  discretion,  it  will,  under  the 
circumstances  disclosed,  exercise  it  to  cure  what  has  been  done, 
and  maintain  the  existing  order  of  things.  Whilst  a  moral  wrong 
can  never  rest  harmless,  a  mere  mistake  may  become  so  inserted  in 
healthful  surroundings,  and  imbedded  under  supervening  rights,  as 
to  make  its  extraction  as  dangerous  as  useless. 

Upon  the  first  point  it  is  obvious  that  the  circuit  court  and  the 
petitioners  in  the  proceedings  for  organization,  mistook  the  tribunal. 
The  power  had  been  conferred  upon  the  circuit  court  by  the  general 
incorporation  act  of  1868;  but  this  act  has  been  superseded  bv 
another  covering  the  same  ground,  passed  April  9th,  1869.  The 
latter  act  has  not  been  published  in  the  regular  pamphlet  acts  of 
the  session,  but  in  a  separate  one  commonly  known  to  the  profession 
in  our  state  as  McClure's  digest,  which  contained  a  collection  of 
acts  supposed  to  have  been  adopted  by  the  legislature,  as  a  part  of 
the  general  revision  of  the  whole  statutorv  law  of  the  state.     The 


T^12  STATE   V.    LEATIIERMAX    ET   AL.  §    2 

greater  part  of  them,  however,  though  not  all,  were  held  invalid 
bv  the  courts  (\insant  v.  Knox,  27  Ark.  266).  Amongst  those 
sustained  was  the  said  act  of  1869,  vesting  in  the  county  courts 
the  jurisdiction  to  determine  and  pronounce  upon  the  creation  of 
municipal  corporations.  At  that  time,  by  the  constitution  then  in 
force,  the  powers  which  the  legislature  might  vest  in  county  courts 
were  not  strictly  limited,  and  the  right  to  confer  upon  them  this 
power  cannot  be  seriously  questioned. 

On  the  third  of  April,  1873,  county  courts  were  abolished,  and 
boards  of  county  supervisors  appointed  in  their  stead,  to  which 
were  transferred  all  the  powers  and  duties  of  the  county  courts. 
It  is  noticeable,  however,  that  the  legislature  afterwards,  on  the 
28th  of  April  1873,  seems  to  have  overlooked  the  former  transfer 
of  jurisdiction  from  the  circuit  courts,  or  at  least  to  have  still  con- 
sidered it  a  very  appropriate  tribunal  for  kindred  subjects.  By 
act  of  that  date,  making  provision  for  annexation  of  territory  to  cor- 
porations, it  was  provided  that  application  for  the  purpose  should 
be  made  to  the  circuit  courts.  It  is  rather  suggested  to  the  courts, 
then  contended,  that  this  w'as-  a  recognition  of  a  remaining  jurisdic- 
tion there,  over  the  subject  matter;  which  would  still  authorize  those 
courts  to  receive  and  act  upon  applications  for  the  creation  of  new 
corporations.  We  cannot  so  extend  the  language  of  the  act,  which 
regards  annexations  only.  It  seems  anomalous,  and  was,  perhaps, 
passed  under  the  mistaken  impression  that  the  act  of  1868  was  still 
in  force  but  we  cannot  on  that  account,  hold  the  act  of  April  9th 
as  having  been  suspended. 

So  the  law  stood  when  the  order  of  the  circuit  court  was  made. 
establishing  Arkansas  City.  There  was  no  jurisdiction  and  the  order 
was  void.  I  find  nothing  to  cure  this  in  the  constitution  of  1874  nor 
in  subsequent  legislation.  The  new  general  incorporation  act  of 
March  9,  1875,  §  5,  adopted  only  such  corporations  as  were  existing 
at  the  time  the  new  constitution  took  effect  and  which  had  been 
described  or  denominated  by  some  law  then  in  force.  This  had  not 
been. 

Rut  it  had  been  an  existing  dc  facto  corporation  all  the  time  from 
1873  till  now:  and  many  things  had  in  good  faith  been  done  under 
it  which  would  be  shocking  now  to  undo.  The  disastrous  conse- 
quCTiccs  would  not  be  confined  to  the  case  of  Arkansas  City.  Mu- 
nicipal corjjorations  throughout  the  state  have  become  numerous. 
They  are  not  only  highly  beneficial,  but  necessary  agencies  of  good 
government.  We  can  see  how  many  of  them  may  heretofore  have 
been,  or  may  be  henceforth,  put  in  operation  under  the  same,  or  simi- 
Inr  mistake.  To  declare  them  all  null,  after  long  acquiescence  on  the 
part  of  the  state  wf)u1d  open  a  very  T\'m(lora's  box  of  litigation. 
and   pro(hicc   incalculable   hardshiii  and   confusion. 

This  compels  us  to  the  broader  field  of  inquiry,  whether  this  court, 


§    2      ACiAINST   MUNICD'AL  COKl'OKATIONS  AND  PUBLIC  OFFICERS.       313 

in  view  of  justice,  equity,  and  the  security  of  titles,  can  find  in 
recognized  principles  of  law,  sufficient  warrant  for  refusing  its 
aid  in  opening  the  flood  gates  of  such  immitigable  evil. 

The  practice  of  filing  informations  in  the  nature  of  quo  zvarranto 
existed  at  common  law.  But  it  was  always  on  the  relation  of  the 
attorney  general,  to  vindicate  or  protect  the  rights  of  the  crown 
against  visurpation  and  abuse  of  its  franchises.  Never  upon  the 
relation  of  a  private  person  to  try  his  right  to  an  office,  until  the 
statute  of  Anne,  which  made  this  proceeding  p:i)ser\'ient  to  the  trial 
of  private  rights  of  this  nature,  and  allowed  informations  by  the 
attorney-general  on  the  relation  of  individual  citizens  for  their  bene- 
fit. The  statute  zvas  never  in  force  in  this  state.  We  have  other 
appropriate  proceedings  to  try  and  determine  between  the  individ- 
uals, the  right  to  hold  office.  The  course  of  judicial  decisions  under 
the  act  in  England,  are,  however,  worthy  of  note,  being  pregnant 
examples  of  their  tendency  to  prevent  the  abuse  of  the  proceedings, 
after  long  acquiescence  on  the  part  of  those  assuming  to  have  been 
aggrieved. 

Originally,  upon  the  passage  of  the  act,  the  granting  of  these 
informations  was  a  matter  of  course ;  and  when  once  filed,  by  leave, 
the  courts  felt  bound  to  determine  the  right  by  strict  law  regardless 
of  consequences.  This  aftcrzvards  ceased  to  he  the  practice  in  the 
case  of  private  relators.  The  i^^ranting  of  leave  zvas  made  to  depend 
on  the  sound  discretion  of  the  court,  which  it  came  to  exercise 
upon  the  particular  circumstances  of  each  case.  Although  at  com- 
mon law,  the  time  in  which  the  right  to  exercise  an  office  might 
be  impeached,  was  indefinite,  the  person  against  whom  the  remedy, 
under  the  act  of  Anne,  was  sought,  might  show  that  his  right 
had  been  acquiesced  in  for  a  long  time.  By  analogy  to  the  statute  of 
•  imitations  the  time  was  at  first  fixed  at  twenty  years.  Afterwards 
it  was  reduced  to  six.  See  cases  collected  and  cited  in  Bacon  Abr. 
(Informations.  D).  See  also  High  Ex.  Rem.  {Quo  Warranto), 
[passim).  I  do  not  find  however,  that  any  English  cases  go  to  the 
extent  of  holding  that  this  applies  to  other  cases  than  those  of 
private  relators  seeking  personal  rights ;  or  that  the  doctrine  of 
"nullum  tonpus  occnrrit  regi"  has  ever  been  there  ignored  in  case 
of  such  applications,  in  behalf  of  the  sovereign,  as  the  attorney 
general  might  have  made  before  the  act  of  Anne.  The  discretion 
of  the  court,  indeed,  although  not  used  at  first,  is  based  upon  the 
language  of  the  act,  which  expressly  provides  that  the  relations 
therein  allowed  must  be  filed  by  leave  of  the  court. 

But  times  change,  and  the  exigencies  of  society  and  good  govern- 
ment change  with  them.  The  great  multitude  of  new  municipal 
-:orporations  continually  springing  up  in  the  American  States,  their 
"onvenience,  and  indeed  absolute  necessity,  as  agencies  of  the  gov- 
ernment and  the  danger  of  the  impending  evils  to  which   I  have 


314  STATE   V.    LEATHER  MAN    ET    AL.  §    2 

alluded,  have  induced  several  American  Courts  and  distinguished 
jurists  to  go  a  step  further,  and  apply  this  discretion  to  proceedings 
on  the  part  of  the  state  herself,  without  any  private  relator.  The 
step  seems  to  have  been  impelled  ex  necessitate  rei,  and  in  truth 
implies  sounder  views,  and  advanced  ideas  of  the  nature  of  sover- 
eigntv,  as  resting  in  the  state,  for  the  public  good,  ami  rot  for  the 
distraction   of   business   and   confusion   of    rights. 

The  case  of  Jameson  v.  People,  i6  111.  p.  257,  was  a  quo  warranto 
to  test  the  validity  of  a  numicipal  corporation,  which  had  not  been 
organized  in  accordance  with  law.  The  corporation  had  gone 
into  operation  and  had  been  named  in  a  subsequent  legislative  act, 
giving  it  certain  powers.  This  was  held  to  have  cured  the  irregu- 
larity" but  the  opinion  of  the  court  goes  upon  still  broader  grounds. 
Skinner,  J.,  said  "If  there  is  no  such  corporation,  all  acts  done  un- 
der the  supposed  corporate  powers,  are  mere  nullities,  and  no  lia- 
bility can  exist  by  reason  of  contracts  made  in  the  corporate  name. 
Were  we  to  hold,  after  this  acquiescence  of  the  public,  and  these 
recognitions  of  the  legislature  that  the  town  remains  unincorporated, 
on  account  of  some  defect  in  its  original  organization  as  a  corpora- 
tion, what  confidence  could  individuals  have  in  the  validity  of  se- 
curities emanating  from  these  local  authorities?  Municipal  cor- 
porations are  created  for  the  public  good — are  demanded  by  the 
wants  of  community ;  and  the  law,  after  long  continued  use  of 
corporate  powers,  and  the  public  acquiescence,  will  indulge  in  pre- 
sumptions in  favor  of  their  legal  existence."  It  is  true  that  the 
defect  of  organization  in  that  case  w^as  only  the  result  of  an  irregu- 
larity, and  there  had  been  an  express  legislative  recognition.  But 
the  grounds  upon  which  the  court  proceeds  extend  much  beyond 
the  facts  of  the  particular  case. 

The  case  of  the  People  v.  Maynard,  15  Mich.  470,  was  an  in- 
formation in  the  name  of  the  attorney  general,  by  a  private  relator, 
against  the  treasurer  of  a  county.  The  case,  as  to  facts,  is  not  in 
point,  as  an  authority ;  but  in  the  course  of  the  opinion,  I  find  these 
broad  grounds  again  asserted:  'Tn  jmblic  afifairs.  where  the  people 
have  organized  themselves,  under  color  of  law,  into  the  ordinary 
municipal  bodies,  and  have  gone  on,  year  after  year,  raising  taxes, 
making  imi)rovements,  and  exercising  their  usual  franchises,  their 
rights  are  pro])crly  regarded  as  depending  quite  as  much  on  the 
acf|uicsccnce,  as  on  the  regularity  of  their  origin,  and  no  ex  post 
facto  inquiry  can  be  permitted  to  undo  their  corporate  existence. 
Whatever  mav  be  the  rights  of  individuals  before  such  general 
acf|uiesccnce,  the  corporate  standing  of  the  community  can  be  no 
longer  open  to  fjuestion." 

There  is  a  case  in  the  early  rcjiorts  of  Alabama,  State  v.  Burnett. 
■2  Ala.  N.  S.  T'.  140,  in  which  the  judge  in  arguing,  recognizes  the 
(lisrrcti'iu   of   the   courl    lo   refuse   an    information    at   the    instance 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      315 

of  one  who  had  no  claim  to  the  office,  and  also  when  the  franchise 
involved  no  question  of  private  ri^^hts  "as  in  the  case  of  corporations, 
either  public  or  private.''  The  distinction  drawn  in  that  case,  how- 
ever, seems  to  us  novels  inasmuch  as  it  denies  the  discretion  where 
the  information  is  in  behalf  of  a  private  rij^ht. 

The  opinions  above  quoted  taken  altogether,  although  none  are 
exactly  in  point,  seem  to  us  utterances  of  an  enlightened  and  pro- 
gressive jurisprudence,  widening  and  adapting  itself  to  free  Amer- 
ican institutions,  and  the  rapid  development  of  the  country  in  the 
growth  of  towns  and  cities. 

We  are  emboldened  by  them  to  declare  in  behalf  of  the  public 
good,  that  the  state  herself  may,  by  hiii^  acquiescence,  and  by  the 
continued  recognition  through  her  ozvn  officers — state  and  county — 
of  a  municipal  corporation,  be  precluded  from  an  information  to 
deprive  it  of  franchises  long  exercised  in  accordance  zvith  the 
general  lazv. 

The  case  made  by  the  answer  shows  an  acquiescence  for  nearly 
nine  years,  and  a  recognition  by  the  governor,  county  court,  county 
clerk,  county  collector,  and  the  whole  of  the  population  now  over  a 
thousand.  If  the  answer  be  true,  the  corporation  of  Arkansas  City 
should  not  notv  be  held  null  and  void. 

Overrule  the  demurrer. 

See  also,  State  v.  Town  of  Westport,  116  Mo.  582;  State  v.  Gordon,  87 
Ind.  171 ;  People  v.  IMaynard,  15  Mich.  463.  Also  People  v.  Farnham,  35 
111.  562;  Jameson  v.  People,  16  111.  256. 


3.     Will  not  lie  as  a  remedy  for  a  neglect  to  perform  a  corporate 
duty  or  to  annul  a  municipal  ordinance. 

ATTORNEY  GENERAL  v.  CITY  OF  SALEM. 

1869.     Supreme  Judicial  Court  of   AJassachusetts. 
103  Mass.  138. 

Morton,  J. — 

This  is  an  information  in  the  nature  of  a  quo  tvarranto.  The  de- 
fendants have  demurred  ;  and  the  only  question  before  the  court  is, 
whether  upon  the  facts  stated  in  the  information  it  can  be  sus- 
tained. 

Under  the  statute  of  1864,  c.  268,  "for  supplying  the  city  of 
Salem  Avith  pure  water",  the  said  city  has  constructed  works  for 
supplying  the  inhabitants  with  water  at  an  expense  of  a  million 
dollars  or  more,  and  has  issued  scrip  or  bonds  to  that  amount.  The 
thirteenth  section  of  said  act  provides  that  "the  citv  council  shall 


3l6  ATTORNEY    GENERAL   V.    CITY    OF   SALEM.  §    2 

establish  such  price  or  rents  to  be  paid  for  the  use  of  the  water,  as 
to  provide  annually,  if  practicable,  from  the  net  income  and  re- 
ceipts therefor,  for  the  payment  of  the  interest,  and  not  less  than 
one  per  cent,  of  the  principal  of  the  "city  of  Salem  water  loan"  and 
shall  determine  the  manner  of  collecting  the  same.  The  net  surplus 
income  and  receipts,  after  deducting  all  expenses  and  charges  of 
distribution,  shall  be  set  apart  as  a  sinking  fund,  and  applied  solely 
to  the  principal  and  interest  of  said  loan  until  the  same  is  fully  paid 
and  discharged." 

The  information  alleges  in  substance  that  the  city,  disregarding 
these  provisions  of  law,  has  established  merely  nominal  rates,  and 
rents  to  be  paid  for  water,  with  the  fraudulent  intent  and  purpose 
to  distribute  water  free  to  all  its  inhabitants  and  to  all  its  business 
men  and  corporations,  and  to  tax  the  property  and  polls  of  the  in- 
habitants to  pay  said  interest  upon  the  water  loan  and  the  expenses 
of  operating  the  said  works  and  the  said  one  per  cent,  upon  the 
principal  of  the  said  loan.  The  prayer  of  the  information  is,  that 
the  city  may  be  made  to  answer  to  the  commonwealth  by  what  war- 
rant it  claims  to  do  the  acts  and  to  exercise  the  rights  and  powers 
aforesaid;  and  that  said  city  and  its  officers  may  be  enjoined  from 
supplying  water  at  nominal  prices,  and  from  making  contracts  at 
that  rate,  and  to  that  effect,  and  from  taxing  its  inhabitants  to  pay 
said  interest  and  the  expenses  of  operating  the  works  and  the  one 
per  cent,  towards  the  capital  of  the  water  loan. 

An  information  in  the  nature  of  quo  warranto  has,  in  modern 
practice,  taken  the  place  of  the  ancient  writ  of  quo  warranto,  which 
was  in  the  nature  of  a  writ  of  right  for  the  king  against  whoever 
claims  or  usurps  any  office,  franchise  or  liberty,  to  inquire  by  what 
authority  he  supports  his  claim,  in  order  to  determine  the  right.  3 
I'lackstone  Comm.,  262:  6  Dane  Abr.  360;  Cole  Informations,  no. 
Such  information  lies  when  the  party  proceeded  against  has  usurped 
some  office,  franchise  or  liberty,  to  which  he  has  no  right ;  or  when 
having  an  office  or  a  franchise,  he  has  by  nonuser  or  abuse  forfeited 
it,  and  the  information  is  brought  for  the  purpose  of  enforcing  such 
forfeiture.  People  v.  Turnpike  Company,  23  Wend.  (N.  Y.)  222. 
But  it  is  not  the  ap'propriatc  remedy  7vhen  the  object  is  to  enforce 
the  performance  of  duties  imposed  by  hrn'. 

The  judgments  u])on  an  information  in  the  nature  of  a  quo  war- 
rnuto  are  adai)tcd  to  the  ])urposes  above  stated.  The  judgment  may 
bf,  that  the  franchise  usur])ed  or  abused  be  seized  and  forfeited  to 
the  conimonwcaltli,  if  the  commonwealth  can  enjoy  it;  if  not,  the 
judgment  is  ouster  and  fine.  Such  judgment,  in  cither  form  is 
clearly  inapplicable,  where  the  purpose  of  the  proceeding  is  to  com- 
pel the  prrfdrmancc  of  a  duty,  which  the  defendant  neglects  or  re- 
fuses to  perform,  or  to  restrain  the  impro])er  use  of  a  franchise  or 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND   PUI3LIC  OFFICERS.       317 

power,  clearly  granted,  which  does  not  work  a  forfeiture  of  the 
whole  franchise. 

In  the  case  at  bar,  upon  a  careful  analysis  of  the  allegations  in 
the  information,  it  is  plain  that  the  grievance  complained  of  is  not 
that  the  defendants  have  usurped  a  franchise  not  granted  but  that 
they  neglect  to  perform  a  duty  imposed  upon  them  by  law  in  the 
exercise  of  a  legal  franchise.  Their  alleged  default  is,  that  they 
do  not  establish  such  rates  or  prices  to  be  paid  for  the  use  of  water 
as  to  provide  annually,  from  the  net  income  thereof,  for  the  payment 
of  the  interest  and  one  per  cent,  of  the  principal  of  the  loan  fund  and 
the  expenses  of  operating  the  works.  Although  this  results  in  dis- 
tributing the  water  free,  or  for  a  merely  nominal  price,  it  cannot  be 
properly  said  to  be  a  usurpation  of  a  franchise.  At  the  most  it  is 
an  improper  use  or  abuse  of  power  in  the  exercise  of  a  franchise 
conferred  upon  them  by  the  act  of  1864.  It  is  impossible  to  regard 
the  act  of  establishing  the  water  rates,  from  time  to  time,  as  the  ex- 
ercise of  an  independent  franchise. 

Upon  this  information,  if  any  judgment  is  rendered  against  the 
defendant  it  would  be  a  judgment  of  forfeiture  of  and  ouster  from 
the  whole  of  the  franchise.  This  the  plaintiff  does  not  claim.  Peo- 
ple V.  Turnpike  Company,  23  Wend.  (N.  Y.)  222;  People  v.  Bank 
of  Hudson,  6  Cow.  (N.  Y.)  217.  This  information  does  not  allege 
such  forfeiture,  and  does  not  pray  for  a  judgment  of  forfeiture  or 
ouster.  Upon  the  whole  we  are  of  the  opinion  that  this  information 
cannot  be  sustained. 

We  have  not  felt  called  upon  to  consider  whether,  under  our 
political  system  an  information  in  the  nature  of  a  quo  zvarranto  can 
under  any,  and,  if  any,  what,  circumstances,  be  maintained  against 
a  city,  town  or  other  municipal  corporation. 

But  the  plaintiffs  urge  that  this  proceeding  may  be  treated  as  a 
proceeding  for  general  relief  on  the  equity  side  of  the  court.  If 
the  necessary  amendments  were  made  to  change  it  into  an  informa- 
tion or  a  bill  in  equity,  we  are  of  the  opinion  that  still  it  could  not  be 
sustained.  Whether,  in  this  state,  in  the  absence  of  any  express 
grant  of  equity  jurisdiction,  the  attorney  general  can  bring  a  bill  in 
equity  to  redress  any  public  wrong  or  grievance,  need  not  be  de- 
cided. It  is  clear  that  such  a  bill  cannot  be  sustained  for  relief 
against  a  private  wrong.  In  this  case,  the  grievance  complained  of 
is  not  a  public  wrong,  in  which  every  subject  of  the  state  is  inter- 
ested ;  and  therefore  cannot  be  redressed  by  a  public  prosecution  or 
proceeding.  Wesson  v.  Washburn  Iron  Co.,  13  Allen  (Mass.)  95; 
People  V.  Clark,  53  Barb.  (N.  Y.)  172. 

Demurrer  sustained. 


3l8  STATE  EX   REL  V.    CITY   OF   LVOXS.  §    2 

STATE  EX  REL.  V.  CITY  OF  LYONS. 
1871.     Supreme  Court  of  Iowa.     31  Iowa  432. 

(Information  in  the  nature  of  quo  icarnmto  filed  by  the  dis- 
trict attorney  on  the  relation  of  Biiell,  asking  that  respondent  may 
be  required  to  show  by  what  authority  a  certain  ordinance,  vacat- 
ing a  portion  of  Alain  Street  in  said  city,  was  passed.  Respondent 
demurred  and  demurrer  was  sustained  in  the  district  court.  Ap- 
peal.) 

Cole,  J.  Our  statute  provides  (Rev.,  §3732),  "an  mformation 
may  be  filed  against  any  person  unlawfully  holding  or  exercising 
any  public  office  or  franchise  within  this  state,  or  any  office  in  any 
corporation,  created  by  the  laws  of  this  state,  and  when  any  public 
officer  has  done  or  suffered  any  act  which  works  a  forfeiture  of  his 
office,  or  when  any  persons  act  as  a  corporation  in  this  state  without 
being  authorized  by  law,  or,  if  being  incorporated,  they  do  or  omit 
acts  which  amount  to  a  surrender  or  forfeiture  of  their  rights  and 
privileges  as  a  corporation,  or  when  they  exercise  powers  not  con- 
ferred by  law." 

Our  attention  has  not  been  directed  to,  nor  have  we  been  able  to 
find,  any  case  in  the  books  where  proceeding  by  quo  zvarranto,  or 
information  in  the  nature  thereof,  has  been  entertained  for  the  pur- 
pose of  declaring  void  or  annulling  a  legislative  act,  whether  passed 
l)y  a  state  or  an  inferior  municipal  legislature.  It  is  not  necessary 
for  us  to  definitely  determine  in  this  case  whether  or  not,  under  our 
statute,  such  a  proceeding  can,  under  any  circumstances  be  main- 
tained, since  we  ground  our  decision  herein  upon  the  special  facts 
set  forth  in  the  information. 

It  appears  by  the  clause  of  the  act  creating  said  city,  as  set  out 
by  the  informant,  that  the  city  has  power  "to-  establish  and  locate 
streets  and  alleys,  and  to  vacate  the  same,  upon  the  petition  of  two 
thirds  the  value  of  the  real  property  on  both  sides  the  street  or 
alley  where  the  change  is  desired."  From  this  it  is  apparent  that 
the  city  is  clothed  with  the  power  to  vacate  streets,  and,  therefore. 
when  the  council  passed  the  ordinance  in  question,  they  did  not 
exercise  powers  not  conferred  by  law.  Rut,  at  the  most  which  can 
be  made  from  all  the  statements  of  the  information,  they  were  exer- 
cising a  power  conferred  by  law,  in  an  improper  and  irregular  man- 
ner. The  statute  docs  not  authorize  this  ]irocceding  for  a  mere 
irregular  exercise  of  a  conferred  j)ower,  although  such  irregularity 
may  Ix;  sufficient,  when  tested,  to  vitiate  or  render  void  the  act  done. 
I'A-rry  clause  of  the  section  of  the  statute  f|uolcd  shows  that  the  pro- 
(•(•(■(liiig  by  information  is  only  authorized  in  tlie  cases  where  the 
olficc,  franchise  or  corporate  authority  is  exercised  in  the  absence 
of  the  vital  element  f)f  power.     If  the  power  attaches,  the  manner  of 


§    2      AGAINST    MUXICII'AL  CORPORATIOXS   AXIJ   I'UULIC  OFFICERS.       319 

its  exercise  cannot  be  challenged  by  information  or  quo  warranto. 
Nor  is  it  within  the  legitimate  scope  of  the  relief  afforded  by  such 
proceedings  to  declare  null  and  void  what  may  have  been  done,  but 
only  to  affirm,  or  adjudge  as  unauthorized  the  claim  to  the  office, 
franchise  or  power  which  may  have  been  theretofore,  with  or  with- 
out color  of  right,  unlawfully  exercised ;  and  in  case  of  adverse 
claimants  to  award  the  office  or  franchise  to  him  having  the  legal 
right  thereto. 
Affirmed. 


A.  Upon  proceedings  to  test  the  right  of  incumbent  to  a  munici- 
pal office,  the  court  may  inquire  into  the  legality  of- the  ex- 
istence of  the  municipality. 

STATE  EX  REL.  READ  v.  WEATHERBY. 

•  1869.     Supreme  Court  of  Missouri.     45  Mo.  17. 

Currier,  J.,  delivered  the  opinion  of  the  court. 

This  is  a  proceeding  in  the  nature  of  a  writ  of  quo  zvarranto. 
The  information  alleges  that  the  defendants  have  "unlawfully 
usurped  and  are  now  wrongfully  holding  and  exercising  the  fran- 
chise of  passing  ordinances  providing  for  the  levy  of  taxes  on  the 
property  of  the  inhabitants"  of  the  town  or  village  of  Shelbina,  in 
the  county  of  Shelby,  under  the  false  pretense  that  the  "inhabitants 
of  said  town  are  a  body  politic  and  corporate,  under  and  by  virtue 
of  the  provisions  of  chapter  41,  of  the  general  statutes  of  the  state 
of  Missouri ;  that  the  defendants  are  also,  in  like  manner,  unlawfully 
exercising  the  franchise  of  appointing  persons  to  collect  such  taxes, 
etc.",  and  prays  that  the  defendants  may  be  required  to  show  by  what 
authority  of  law  these  franchises  are  being  exercised  by  them :  that 
judgment  of  ouster  may  be  awarded,  a  suitable  fine  imposed,  and 
costs  recovered.  The  return  denies  the  alleged  usurpations  but  ad- 
mits the  doing  of  the  specific  acts  charged ;  and  then  proceeds  to  al- 
lege that  the  defendants  were  there  in  the  proper  and  lawful  exer- 
cise of  the  duties  of  "trustees  of  the  inhabitants  of  the  town  of 
Shelbina ;"  that  the  inhabitants  of  said  town  constitute  a  body  politic 
and  corporate,  having  been  so  "organized  and  established  by  virtue 
of  the  order  of  the  counts^  court  of  said  Shelby  County,  made  and 
entered  of  record  on  the  fifth  of  March,  1867" ;  that  the  defendants 
were  duly  appointed  or  elected  trustees  of  the  corporation  thus  con- 
stituted, and  that  thev  have  since  exercised  the  franchise  in  question, 
in  virtue  of  the  "authoritv  thus  conferred"  and  "the  authoritv  con- 
tained in  chapter  41  of  the  general  statutes."     A  demurrer  to  the 


320  STATE  EX  REL.   READ  V.    WEATHERBY.  §    2 

return  having  been  overruled,  the  relator  replied,  admitting  that  the 
Shelby  county  court,  March  5,  1867,  entered  on  its  records  an  order 
declaring  that  the  people  of  said  town  incorporated  by  the  name  of 
the  "Inhabitants  of  the  tov^n  of  Shelbina"  and  designating  the  metes 
and  bounds  of  the  said  corporation.  The  reply  then  proceeds  to  al- 
lege that  the  order  aforesaid  was  fraudulently  made  and  procured 
on  the  part  of  the  applicants  therefor,  and  of  the  court  granting  it ; 
setting  out  the  particulars  of  said  supposed  frauds,  and  showing 
among  other  things,  that  the  petition  upon  which  the  court  acted  in 
granting  the  order  and  entering  it  of  record,  was  not  as  the  law  re- 
quired it  should  be,  signed  by  two  thirds  of  the  taxable  inhabitants 
of  said  town.  This  is  substantially  the  state  of  the  pleadings.  On 
the  trial  the  relator  offered  evidence  tending  to  prove  the  facts 
averred  in  the  reply.  This  evidence  was  objected  to  and  excluded 
on  the  ground  that  the  order  of  the  Shelby  County  Court,  declaring 
the  inhabitants  of  the  town  of  Shelbina  a  body  politic  and  corporate, 
was  judicial  in  its  character  and  that  until  annulled  it  was  conclusive 
of  the  existence  of  the  facts  required  to  be  shown  as  a  condition  to 
the  grant  of  the  order,  and  for  the  further  reason  that  the  facts  of- 
fered to  be  proved  could  alone  be  inquired  into  upon  a  proceeding 
against  the  inhabitants  of  the  town  in  their  corporate  name. 

1.  The  demurrer  to  the  return  was  properly  overruled.  It  was 
not  necessary,  in  alleging  the  existence  of  the  corporation,  to  set 
out  the  facts  preliminary  to  the  grant  of  the  order,  and  upon  which 
the  order  was  founded.  (12  Barb.  (N.  Y.)  573).  The  order,  and 
not  the  antecedent  facts,  brought  the  corporation  into  being.  The 
presence  of  these  facts  is  to  be  presumed  from  the  fact  of  the  order, 
until  the  order  itself  is  attacked  and  overthrown.  The  court  had 
jurisdiction  of  the  subject,  and  the  propriety  and  regularity  of  its 
action  is  to  be  presumed  until  the  contrary  is  shown.  Its  finding 
and  judgment  in  the  premises,  until  set  aside,  must  be  deemed  con- 
clusive of  the  main  fact  here  sought  to  be  drawn  in  issue.  This 
principle  is  applicable  to  the  acts  and  judgments  of  all  courts  of 
record  having  jurisdiction  of  the  subject  matter  of  such  acts  or 
judgment.  (See  Kayser  v.  Trustees  of  Bremen,  16  Mo.  88;  Betts 
V.  Williamsburgh,  15  Barb.  (N.  Y.)  255;  I  Greenleaf  Ev.,  part  3, 
ch.  5.) 

2.  The  question  of  the  existence  or  the  non-existence  of  the 
.supposed  corporation  was  put  directly  in  issue  by  the  pleadings, 
and,  in  my  opinion,  properly.  The  information  alleges,  and  it  pro- 
ceeds tliroughout  upon  the  theory  that  there  was  no  such  corporate 
existence  as  the  defendants  claim.  The  in(|uiry  whether  there  was 
such  a  cori)oration,  was  not  collateral  but  primary  and  direct.  It  is 
not  chargcfl  that  the  defendants  intruded  into  an  office,  but  that  they 
usurped  a  franchise — no  corporation,  and,  consequently,  no  corpo- 
rate office  existing.     In  England  a  franchise  is  concisely  defined  to 


§    2      AGAINST   MUNICIPAL  CORPORATIONS   AND   PUIiLIC   OFFICERS.      32I 

be  a  "royal  priviles^e  in  the  hands  of  a  subject."  In  this  country  it 
is  defined  as  a  prk'ilci:;c  of  a  public  nature,  icliich  cannot  be  exer- 
cised without  a  legislative  grant.  With  us,  therefore,  the  wrongful 
assumption  of  powers,  which  can  alone  be  rightfully  exercised  when 
granted  by  the  sovereign  authority,  is  a  violation  of  a  sovereign 
franchise  (Angell  &  Ames  Cor.  697).  The  violation  of  such  sover- 
eign franchise  is  precisely  what  the  defendants  are  charged  with 
doing.  They  admit  the  assumption  of  the  powers,  but  aver  the 
grant  of  the  authority.  In  other  words,  they  allege  the  existence 
of  the  corporation  (which  the  relator  denies),  and  that  they  are 
legal  officers  of  that  corporation,  and  that  as  such  they  exercise  the 
franchise  in  question.  The  controversy  turns  wholly  upon  the  ques- 
tion of  the  existence  or  non-existence  of  the  alleged  corporation. 
The  replication  itself  admits  that  existence  de  facto  and  de  jure  as 
well,  for  it  admits  the  order  calling  the  corporation  into  existence. 
That  order  is  spread  upon  the  records  of  the  county  court  of  Shelby 
County.  It  is  regular  upon  its  face,  and  is  prima  facie  evidence,  at 
least  that  the  inhabitants  of  the  town  of  Shelbina  are  a  body  politic 
and  corporate.  The  record  is  unobjectionable  ujion  its  face,  and  the 
relator  seeks  to  attack  the  corporation  for  matters  dehors  the  record 
— matters  in  pais.  He  shows,  in  a  word,  that  an  existing  institution 
had  its  origin  in  fraud,  and  that  it  ought  not  therefore,  longer  to 
continue.  But  this  position  is  fatal  to  the  theory  and  allegations  of 
the  information.  This  is  not  the  Vernon  County  case  at  all.  (State 
ex  rel.  Douglass  v.  Scott,  17  Mo.  521.)  There  the  supposed  corpo- 
ration never  had  even  a  prima  facie  existence.  The  act  which  pro- 
posed to  establish  the  new  county  was  held  unconstitutional  and 
void.  It  was  a  nullity  from  the  beginning ;  it  was  as  though  no  such 
act  had  ever  been  passed.  Not  unlike  this  is  the  case  from  Massa- 
chusetts (Commonwealth  v.  Bowler,  10  Mass.  295).  Both  cases 
sustain  the  theory  of  the  relator's  information ;  but  the  theory  of  the 
information  and  the  facts  stated  in  the  replication  are  in  conflict. 
and  cannot  stand  together.  If  the  pleadings  and  evidence  ofifered 
affirmed  the  proposition  that  no  corporation  existed,  either  de  facto 
or  dc  jure,  then  the  relator  would  be  entitled  to  judgment.  But 
facts  which  go  to  show  simply  that  the  corporation  ought  never  to 
have  existed,  do  not  sustain  the  allegations  that  it  never  did  exist. 
Where  one  of  these  minor  municipal  corporations,  contemplated  bv 
the  statute,  is  found  in  apparent  legal  existence  and  in  operation 
with  the  order  of  court  establishing  it  regular  and  proper  upon  its 
face,  the  holding  of  it  to  be  a  mere  nonenity  because  of  matters 
antecedent  to  the  order,  could  not  fail  to  be  unjust  and  mischievous 
in  its  effects  upon  innocent  and  morally  unoffending  parties.  It  is 
■true  that  these  inconvenient  consequences  do  not  determine  the 
state  of  the  law.  It  is  proper  to  take  them  into  consideration,  how- 
ever, as  an  inducement  to  cautious  and  circumspect  judicial  action. 


322  PEOPLE  EX  REL.   ATt'y   GENERAL  V.    CITY  OF  OAKLAND.  §    2 

3.  But  the  relator  insists  that  the  statute  (Gen.  St.  1865,  ch.  41) 
provided  for  the  incorporation  of  towns,  under  which  the  Shelby 
County  Court  acted,  is  unconstitutional,  and  therefore  void,  and 
consequently  that  the  order  of  the  county  court  based  on  that  stat- 
ute, is.  upon  its  face,  void  and  of  no  effect.  This  enactment,  sub- 
stantially in  its  present  form,  has  been  upon  the  statute  books  of  the 
state  for  some  forty  years.  Its  operation  has  been  useful  and  benefi- 
cent, and  its  provisions  are  in  harmony  wdth  the  policy  of  American 
legislation  on  the  subject  therein  embraced;  and,  what  is  more  to 
the  purpose,  the  constitutionality  of  the  enactment  has  been  passed 
upon  and  definitely  settled  by  a  prior  adjudication  of  this  court.  The 
point  was  distinctly  made  and  clearly  adjudicated  in  Kayser  v. 
Bremen,  16  Mo.  88.  We  are  satisfied  with  that  decision  and  have  no 
disposition  to  disturb  it. 

The  other  judges  concurring,  the  judgment  of  the  court  below  is 
affirmed. 

See  also,  State  v.  Goowin,  69  Tex.  55 ;  People  v.  Carpenter.  24  N.  Y. 
86;  People  v.  Draper,  15  N.  Y.  532;  State  v.  McReynolds,  61  Mo.  203; 
State  V.   Parker,  25   Minn.  215. 

But  see  Rex  v.  Saunders,  3  East,  119,  opinion  of  Lord  Ellenborough,  and 
State  V.  North,  42  Conn.  79. 


5.     To  test  the  legality  of  the  exercise  of  corporate  powers  out- 
side of  municipal  boundaries. 

PEOPLE  EX  REL.  ATTORNEY  GENERAL  v.  CITY  OF  OAK- 
LAND. 

1891.     .Supreme  Court  of  California.     92  Cal.  611,  28  Pac.  807. 

(Action  in  the  nature  of  quo  zvarranto  brought  by  the  attorney 
general  against  the  city  of  Oakland.  The  information  alleged  that 
the  city  was  duly  incorporated  by  a  special  act  of  the  legislature  in 
1854.  In  1889  a  new  charter  was  adopted  and  in  it  the  boundaries 
of  the  city  were  defined.  Prior  to  the  ratification  of  this  chjytcr  by 
the  legislature,  additional  territory  had  by  vote  of  the  people  been 
annexed  but  such  territory  was  not  included  in  the  description  con- 
tained in  the  new  charter.  The  city  proceeded  to  govern  and  tax 
the  inhabitants  of  said  annexed  territory  and  these  acts  furnish  the 
basis  of  the  complaint.  Judgment  in  lower  coin^t  for  plaintiff.) 
Vancliicf,  C.  (after  reviewing  the  facts  at  some  length).  *  *  * 
I.  The  first  point  made  for  the  ajipellant  is  that  quo  warranto  is 
not  the  proper  remedy.  Section  803  of  the  Code  of  Civil  Procedure 
provides:  "An  action  may  be  brought  by  the  attorney  general,  in 
the  name  of  the  jieople  of  this  state,  ujion  his  own  information,  or 


§    2      AGAINST   MUNICIPAL  CORPORA'!  IONS  AND  PUBLIC  OFFICERS.      323 

upon  the  complaint  of  a  private  party,  against  any  person  who 
usurps  *  *  *  or  unlawfully  holds  or  exercises  *  *  *  any 
franchise  within  this  state."  No  doubt  a  municipal  corporation  is  a 
person  in  the  same  sense  in  which  the  word  is  used  in  this  section. 
Pol.  Code  §  17.  The  facts  found  according  to  stipulation  of 
parties  show  that  the  city  of  Oakland  is  a  municipal  corporation,  and 
as  such  claims  and  exercises  the  right  and  power  to  govern  and  tax 
the  inhabitants  of  certain  territory  in  addition  to  that  described  in  its 
charter.  The  right  and  power  thus  claimed  and  exercised  is  a  fran- 
chise in  addition  to  and  distinct  from  that  of  being  a  corporation. 
(Gas  Co.  V.  January,  57  Cal.  616;  Spring  Valley  W.  W.  v.  Schott- 
ler,  62  Cal.  106-109;  Memphis  &  L.  R.  R.  Co.  v.  Commissioners, 
112  U.  S.  619,  5  Sup.  Ct.  Rep.  209;  Pierce  v.  Emery,  32  N.  H. 
507 ;  Williamette  Woolen  Manufacturing  Company  v.  Bank  of  Brit- 
ish Columbia,  119  U.  S.  191.  7  Sup.  Ct.  Rep.  187)  ;  and  the  exer- 
cise of  such  power  by  a  municipal  corporation  over  the  inhabitants 
of  territory  outside  its  charter  limits  is  the  usurpation  of  a  franchise, 
for  which  the  attorney  general  is  authorized  to  bring  an  action  in 
the  name  of  the  people.     *     *     "* 

(The  court — after  holding  that  the  description  of  the  territory  in 
the  charter  as  approved  and  ratified  by  the  legislature,  was  an  es- 
sential part  of  said  instrument  and  superseded  all  prior  charters,  or 
amendments  thereto, — affirmed  the  decision  below.) 

In  accord. — People  v.  Reclamation  Dist.,  130  Cal.  607;  Frey  v.  Michic. 
68  Mich.  323;  State  v.  Fleming,  147  Mo.  i;  East  Dallas  v.  State,  7s  Tex. 
370;  State  V.  Board,  etc.,  66  Minn.  519;  People  v.  City  of  Peoria,  166  111. 
517,  522;    State  V.   Dimond,  44   Neb.    154. 


Contra. — 

STULTZ  ET  AL.  V.  THE  STATE  ex  rel. 
1879.     Supreme  Court  of  Indiana.     65  Ind.  492. 

(Information  filed  by  the  attorney  general  alleged  that  the  city 
of  Huntington  had  unlawfully  annexed  certain  territory  and  was 
exercising  the  powers  of  a  municipality  over  the  same  and  taxing 
and  governing  the  inhabitants  thereof.     Demurrer  overruled.) 

HowK,  C.  J. —  (After  stating  the  facts  and  examining  the  facts 
of  alleged  usurpation.)     *     *     * 

It  will  be  observed,  however,  that  it  was  not  alleged  in  the  infor- 
mation, that  the  appellants  were  not  the  lawfully  elected  and  quali- 
fied mayor,  councilmen,  clerk,  treasurer,  and  marshal  of  a  city,  say 
of  the  city  of  Huntington,  duly  organized  and  incorporated  under 


324  STULTZ   ET   AL.    V.   THE  STATE   EX    REL.  §    2 

the  general  laws  of  this  state  for  the  incorporation  of  cities.  In  the 
absence  of  such  an  allegation,  it  seems  to  us  that  we  may  fairly  as- 
sume that  the  appellants  w^ere  such  officers  of  such  an  incorporated 
city,  and  that,  as  such  officers,  they  might  of  right  lawfully  do,  ex- 
ercise and  perform,  within  the  limits  of  such  city,  all  such  acts  as 
such  officers  were  authorized  by  law  to  do.  exercise  and  perform. 
If  the  appellants  were  such  officers  of  such  city,  it  cannot  be  said, 
we  think,  that  the  appellants,  or  either  of  them,  had  usurped,  in- 
truded into  or  unlawfully  held  or  exercised  their  respective  public 
offi-ces,  merely  because  they  had  done,  and  claimed  the  right  to  do. 
within  the  territory  described  in  the  information,  all  such  acts  as 
such  officers,  of  duly  organized  cities,  might  of  right  do  within  the 
corporate  limits  of  such  cities,  even  though  such  territory  may  not 
have  been  within  such  city  limits.  It  is  not  alleged,  in  either  para- 
graph of  the  information,  that  the  appellants  had  usurped,  intruded 
into  or  unlawfully  held  or  exercised  the  public  offices  therein  men- 
tioned :  but  the  allegation  was  in  each  paragraph,  that  they  had  done 
and  then  claimed  the  right  to  do,  within  the  territory  described 
therein,  all  such  acts  as  the  incumbents  of  such  public  offices,  in  duly 
organized  cities,  might  of  right  do  under  the  law.  Our  conclusion 
is,  that  the  appellee's  information  docs  not  state  a  case  which  is  war- 
ranted or  authorized  by  any  of  the  provisions  of  section  749  of  the 
practice  act. 

It  is  evident,  we  think,  that  the  object  of  this  suit  was  to  obtain 
a  judgment,  declaring  that  the  territory  described  in  the  informa- 
tion was  not  lawfully  within  the  corporate  limits  of  the  city  of 
llvmtington.  In  our  opinion,  an  information  in  the  nature  of  a  quo 
ivarranto  will  not  lie  to  determine  this  question.  If  the  territory  de- 
scribed w^as  not  lawfully  taken  within,  or  annexed  to,  the  town  or 
citv  of  Huntington,  and  if  the  appellants  as  the  officers  of  such  city, 
unlawfully  performed,  and  claimed  the  right  to  perform,  official 
acts  within  or  over  such  territory,  their  acts  would  be  unauthorized 
and  illegal,  and  they  could  be  enjoined  therefrom  in  a  projx'r  suit, 
brought  for  that  purpose.  But  we  are  clearly  of  the  opinion,  that 
the  legality  of  the  proceedings,  whereby  the  territory  in  question 
was  taken  within,  or  annexed  to  the  city  of  ?Iuntington,  can  not  be 
tried  and  determined,  under  the  provisions  of  our  code,  in  or  by  an 
Ml  formation  in  the  nature  of  a  quo  ivarranto.  In  High,  Extraordi- 
nary Legal  Remedies,  section  618,  it  is  said  that,  where  a  public 
officer  threatens  to  exercise  the  functions  of  his  office  beyond  its 
territorial  limits,  "the  proper  remedy  would  seem  to  be  by  injunc- 
tion, rather  than  a  quo  warranto  information.  Tlius  the  informa- 
tion will  not  lie  to  prevent  the  legally  constituted  authorities  of  a 
city  from  levying  and  cf)llecting  taxes  beyond  the  city  limits,  under 
an  act  of  the  legislature  extending  the  limits,  and  the  constitution- 
ality ui  such  an  art  cannot  be  de'erniined  upon  a  quo  icarranto  in^ 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND  PUBLIC  OPl-lCIiRS.      325 

formation."'  This  doctrine  is  fully  sustained  by  the  case  cited  in  the 
footnote  of  The  People  c.v  rel.  v.  Whitcombe,  55  111.  172. 

In  section  617  of  the  same  excellent  treatise  the  rule  is  laid  down 
that  a  quo  ivarranto  information  will  not  lie,  where  the  party  ag- 
grieved can  obtain  full  and  adequate  relief  in  the  usual  course  of 
proceedings  at  law,  or  by  the  ordinary  forms  of  civil  action.  The 
State  ex  rel.  v.  Marlow,  15  Ohio  St.  114.  "Nor  is  the  rule  as  here 
stated,  limited  to  cases  where  the  relief  may  be  attained  in  the  ordi- 
nary forms  of  rommon  law  actions,  but  applies  also  to  cases  where 
the  grievance  may  be  redressed  by  bill  in  equity,  and  the  existence 
of  an  adequate  remedy  in  equity  would  seem  to  be  a  sufficient  ob- 
jection to  entertain  proceedings  by  information".  The  People  ex 
rel.  V.  Whitcombe,  supra;  The  People  ex  rel.  v.  Ridgely,  21  111.  64. 

This  rule  was  exercised  by  this  court,  in  the  case  of  the  State  ex 
rel.  V.  Shields,  56  Ind.  521,  in  which  it  was  held  that  a  quo  loarranto- 
information  would  not  lie  to  determine  the  title  to  certain  real  es- 
tate, used  for  school  purposes,  as  between  two  school  corporations. 

In  section  580  of  High  Ex.  Leg.  Remedies,  it  is  further  said: — 
"While  the  principles  thus  far  established  indicate  the  tendency  to 
a  somewhat  liberal  use  of  quo  warranto  informations,  as  a  means 
of  correcting  the  usurpation  of  corporate  privileges,  the  courts  will' 
not  entertain  such  informations  for  the  purpose  of  interfering  with 
or  declaring  void  the  legislative  action  of  a  municipal  body,  such  as 
the  common  council  of  a  city.  The  power  of  municipal  legislation 
being  properly  vested  in  such  a  body,  the  courts  will  not  permit  the 
use  of  this  remedy  to  inquire  into  or  challenge  the  manner  in  which 
this  power  has  been  exercised,  nor  is  it  within  the  legitimate  scope 
of  the  proceeding  by  information  to  declare  null  and  void  legisla- 
tive acts  of  such  a  body.  Nor  will  the  charter  of  a  municipal  cor- 
poration be  forfeited  by  proceedings  upon  an  information,  because 
of  the  passage  by  the  corporate  authorities  of  an  alleged  illegal  ordi- 
nance in  which  they  have  transcended  their  powers,  the  offence 
charged  being  at  the  most  but  an  error  of  judgment,  rather  than  a 
Avilful  abuse  of  power."  The  State  ex  rel.  v.  The  City  of  Lyons,  31 
Iowa  432 ;  The  State  ex  rel.  v.  The  Town  Council  of  Cahaba,  ^o 
Ala.  66. 

In  the  case  of  the  City  of  Peru  v.  Bearss,  55  Ind.  576,  which  was 
a  suit  by  the  appellees,  against  the  appellant,  to  enjoin  the  collec- 
tion of  certain  taxes,  assessed  by  the  corporate  authorities  of  the 
city  of  Peru  on  certain  real  estate,  claimed  by  the  appellees  to  have 
been  illegally  annexed  to,  and  therefore  not  legally  within  the  said 
city,  it  was  held  by  this  court,  in  substance,  that  the  only  adequate 
'remedy  for  persons  aggrieved  by  such  annexation,  was  afforded  b\- 
a  suit,  such  as  the  one  then  before  us,  to  enjoin  the  city  authorities 
from  assessing  and  collecting  taxes  on  such  illegally  annexed  terri- 
tory, from  the  owners  thereof  or  the  residents  therein.     The  doc- 


326  OSGOOD   V.    JONES  §    2 

trine  of  the  case  cited  has  been  approved  and  followed  by  this  court, 
in  the  more  recent  case  of  Windman  v.  The  City  of  Vincennes,  58 
Ind.  480. 

It  may  be  said  and  has  been  said  by  the  learned  counsel  of  the 
appellee,  in  this  case,  that  the  views  expressed  in  this  opinion  are  not 
applicable  to  the  case,  such  as  this,  of  a  quo  warranto  information 
bv  the  state,  on  the  relation  of  the  prosecuting  attorney.  To  this 
we  answer,  that,  imder  the  legislation  of  this  state  in  relation  to  quo 
zcarranto  informations,  the  state,  by  its  attorneys,  occupies  no  higher 
or  better  position,  than  any  interested  citizen.  An  information  by 
the  state,  on  the  relation  of  the  prosecuting  attorney,  must  state  a 
case  fairly  within  the  purview  and  meaning  of  the  statute,  or  the 
state,  by  its  attorney,  will  take  nothing  by  the  suit. 

In  our  opinion,  the  court  below  erred  in  overruling  the  appellants' 
demurrer  to  the  appellee's  application. 

Having  reached  the  conclusion  that  the  appellee's  information 
was  insufficient  on  the  demurrer  thereto,  we  need  not  now  consider 
the  other  errors  assigned,  which  call  in  question  the  sufficiency  of 
the  different  paragraphs  of  the  appellants'  answer. 

The  judgment  is  reversed  and  the  cause  is  remanded,  with  in- 
structions to  sustain  the  appellants'  demurrer  to  the  appellee's  in- 
formation. 

Reversed  and  remanded. 

In  accord. — People  v.  Whitcomb,  55  111.  172 ;  City  of  Peru  v.  Bearss, 
55   Ind.   576. 

If  the  exercise  of  municipal  powers  over  territory  unlawfully  annexed 
is  treated  as  an  usurpation  of  corporate  franchises  on  the  part  of  the 
innnicipalit}',  cjuo  zvarranto  would  seem  to  be  the  proper  remedy.  It  is  cer- 
tainly an  anomaly  in  our  jurisprudence  when  courts  deny  the  purely  legal 
remedy  in  quo  warranto  because  the  equitable  remedy  of  injunction  may 
furnish   relief. 


6.     Appropriate  remedy  to  try  title  to  public  office. 

See  Darlcy  v.  Queen,  12  CI.  &  V\n.  520;  supra.  Page  250. 
.Also  State  ex  rcl.  Vance  v.  Wilson,  30  Kan.  661  ;  2  Pac.  828;  supra, 

Page  271. 

OSGOOD  v.  JONES. 

(881.     Supreme  Court  of  New  Hampstitre.     60  N.  H.  543. 

f Complainant  was  treasurer  of  Merrimack  county,  his  term  of 
office  extending  until  June  30,  t88i,  and  until  his  successor  shall  be 
chosen  and  f|ualificd.  November  2,  1880,  an  election  for  a  successor 
was  held,  at  which  complainant  and  defendant  were  candidates. 
The  election  judges  declared  defendant  elected  and  issued  to  him  a 


,  §    2      AGAINST   MUNICIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      2)~7 

certificate  of  election.  Whereupon  complainant  filed  this  bill  in 
equity,  alleging  illegal  and  fraudulent  votes  were  cast  and  counted 
for  the  defendant,  that  he  is  uiformed  and  believes  thac  defendant, 
although  not  legally  elected  to  said  office,  claims  to  have  been  elected 
and  threatens  and  intends  to  enter  upon  the  same  and  discharge  the 
duties  of  treasurer.  The  bill  prayed  for  an  injunction  to  restrain 
the  defendant  from  assuming  the  said  office,  etc.  Defendant  de- 
murred.) 

J.  Y.  MuGRiDGE,  for  the  plaintiff.  The  court,  as  a  court  of  equity, 
has  jurisdiction  in  this  case.  The  process  is  a  bill  in  equity  quia 
timet.  It  alleges,  in  substance,  that  the  plaintiff  is  treasurer  of 
Merrimack  county,  and  is  rightfully  in  possession  of  that  office,  and 
that  he  is  by  law  entitled  to  hold  the  same  until  another  person  is 
legally  chosen  in  his  place ;  also,  that  the  defendant  is  not  legally 
chosen,  but  wrongfully  threatens  to  assume  the  duties  of  the  office 
after  June  30th,  and  the  plaintiff  fears  that  he  may  harass  and  vex 
him  in  the  discharge  of  his  duties  of  his  said  office  and  by  his  con- 
duct cause  great  wrong  and  mischief  to  the  plaintiff ;  and  an  injunc- 
tion is  asked  to  prevent  such  consequences. 

The  plaintiff  "seeks  the  aid  of  a  court  of  equity  because  he  fears 
some  future  probable  injury  to  his  rights  or  interest,  and  not  be- 
cause an  injury  has  already  occurred  which  requires  any  compensa- 
tion or  other  relief."  The  bill  is  to  "accomplish  the  ends  of  pre- 
cautionary justice",  and  should  under  the  well  established  principle 
of  equity  proceedings,  be  entertained  by  the  court.  2  Story  Eq. 
Jur.  s.  826 ;  Walker  v.  Cheever,  35  N.  H.  339 ;  Wells  v.  Pierce,  27 
N.  H.  503,  512. 

Chase  &  Streeter  for  the  defendant.  High,  in  his  work  on  In- 
junctions, s.  1312,  says: — "No  principle  of  the  law  of  injunctions, 
and  perhaps  no  doctrine  of  equity  jurisprudence,  is  more  definitely 
fixed,  or  more  clearly  established,  than  that  courts  of  equity  will  not 
interfere  by  injunction  to  determine  questions  concerning  the  ap- 
pointment of  public  officers,  or  their  title  to  office,  such  questions 
being  of  a  purely  legal  rlature,  and  cognizable  only  by  courts  of 
law.  A  court  of  equity  will  not  permit  itself  to  be  made  the  forum 
for  determining  disputed  questions  of  title  to  public  offices,  or  for 
the  trial  of  contested  elections,  but  will  in  all  such  cases  leave  the 
claimant  of  the  office  to  pursue  the  statutory  remedy,  if  there  be 
such,  or  the  common  law  remedy  by  proceedings  in  the  nature  of  a 
quo  warranto".  He  cites  the  following  authorities  to  this  proposi- 
tion :  People  v.  Draper,  24  Barb.  265  ;  s.  c.  4  Abb.  Pr.  322,  and  14 
How.  Pr.  233 ;  Moulton  v.  Reid,  54  Ala.  320  (a  case  similar  to  this), 
to  which  we  ask  particular  attention;  Beebe  v.  Robinson,  52  Ala. 
66 ;  Planters  Compress  Association  v.  Hanes.  52  Miss.  469 ;  Tappan 
V.  Gray,  9  Paige  Ch.  507,  a.ffirmed  7  Hill.  259 ;  Sheridan  v.  Colvin, 
78  III.  237;  Patterson  v.  Hubbs,  65  N.  C.  119;  Jones  v.  Commis- 


328  OSGOOD  V.    JONES  §    Z 

sioners.  -jy  X.  C.  280;  Colton  v.  Price,  50  Ala.  424;  Delehanty  v. 
Warner,  75  111.  185;  Dickey  v.  Reed,  78  111.  261. 

In  the  last  case  cited  (Dickey  v.  Reed)  the  court  says:  "We  are 
aware  of  no  adjudged  case,  or  text  writer,  who  has  ever  announced 
the  power  as  inherent  in  the  courts  of  equity  to  try  contested  ques- 
tions between  persons  claiming  an  office.  It  is  believed  that  no 
case  can  be  found  where  an  English  court  of  Chancery  has  ever 
tried  a  contested  election  where  the  public  were  concerned ;  and  such 
cases  are  believed  to  be  of  rare  occurrence  in  this  country,  and  then 
only  when  the  power  has  been  conferred  by  express  enactment,  or 
ncessary  implication  therefrom."  In  other  cases  herein  cited  the 
courts  use  similar  language.  See  also  Pierce,  R.  R.  27 ;  Dillon  Mun. 
Cor.  ss.  714,  210 ;  2  Kent,  314 ;  Mc.  Cr.  Elect,  ss.  220,  458 ;  High  Ex. 
Rem.  ss.  619,  641  ;  Boren  v.  Smith,  47  111.  482,  485  ;  People  v. 
^^'iant,  48  111.  263;  Moore  v.  Hoisington,  31  111.  243;  Cochran  v. 
]\IcCleary,  22  la.  75.  86,  in  which  Judge  Dillon,  delivering  an  opin- 
ion of  the  court  says,  "The  court  of  chancery  goes  so  far  as  to  hold 
that  it  will  not  interfere,  before  a  trial  at  law,  in  favor  even  of  an 
officer  de  jure  against  an  illegal  claimant,  by  enjoining  the  latter 
from  exercising  the  functions  of  the  office."  Markle  v.  Wright,  13 
Ind.  548. 

In  Detroit  v.  Board  of  Public  Works,  23  Mich.  546,  Judge  Cooley, 
after  stating  that  the  ground  of  the  application  for  the  injunction 
is  to  prevent  irremediable  mischief,  says  "I  presume  we  may  as- 
sume that  in  the  generality  of  such  controversies  the  respondent 
party  is  as  often  found  to  be  in  the  right  as  his  adversary.  To  sus- 
tain the  bill,  therefore,  wt  must  hold  that  equity  may  take  cogni- 
zance of  a  controversy,  when  the  ground  of  interference  is,  not  the 
question  involved,  but  some  anticipated  injurit)us  result,  which  is 
just  as  likely  to  be  caused  by  the  interference  as  prevented  by  it. 
Such  holding,  I  think,  would  be  without  reason,  and  so  far  as  I  am 
advised,  it  would  be  without  precedent."  See  also  Hagner  v.  Hay- 
berger,  7  W.  &  S.  104;  Hulseman  v.  Rcms,  41  Pa.  St.  396;  Upde- 
graff  V.  Crans,  47  Pa.  St.  103;  Hullman  v.  TToncomp,  5  O.  St.  237; 
Sherman  v.  Clark,  4  Nev.  138. 

We  do  not  remember  ever  to  have  examined  a  question  where  the 
authorities  were  so  numerous,  so  generally  scattered  over  the  coun- 
try, so  uniform,  and  so  clear  as  they  are  upon  this  question.  Some 
of  them  are  very  similar  to  the  case  under  consideration.  Moulton 
V.  Reid,  supra,  and  Updcgraff  v.  Crans,  supra.  We  cannot  say  that 
there  (arc]  no  authorities  the  other  way,  for  we  do  not  suppose  that 
wc  have  found  all  the  cases  in  which  the  question  has  arisen,  but  so 
far  as  wc  have  examined  we  have  found  none.  If  any  exist,  we 
trust  our  opponents  will  call  attention  to  them.  In  Hughes  v.  Par- 
ker. 20  N.  H.  58,  this  principle  as  applicable  to  contests  about  the 
title  to  o^^lr(■^,  in  j»rivatc  corporations,  is  distinctly  recognized.     It 


§    2    AGAINST    MUNICIPAL    CORPOKATONS    AND    PUBLIC    OFFICERS.    329 

will  be  seen  from  some  of  the  foregoing  authorities,  and  from  what 
is  hereinafter  said,  that  there  are  stronger  reasons  for  the  appHca- 
tion  of  the  rule  in  cases  pertaining  to  pubHc  ofifices  than  in  cases 
pertaining  to  the  offices  of  private  corporations,  and  that  the  rule 
governs  both  classes  of  cases. 

Equity  has  no  enlarged  jurisdiction  in  this  state  differing  from 
that  at  common  law,  or  that  in  most  of  the  other  states.  Our  court 
of  equity  "undoubtedly  has  full  chancery  powers,  and  will  admin- 
ister relief  in  all  cases  falling  within  equity  jurisdiction  where  the 
statutes  have  not  provided  other  means  of  redress."  But  the  fore- 
going authorities,  both  text  writers  and  court,  unanimously  hold 
that  questions  of  the  kind  under  consideration  do  not  fall  within 
equity  jurisdiction,  are  not  within  the  chancery  powers  of  the 
courts,  but  belong  exclusively  to  courts  of  law,  which  furnish  a 
plain  and  adequate  remedy  therefor.  We  ask  attention,  in  this  con- 
nection, to  the  briefs  furnished  by  us  in  the  case  that  was  between 
these  parties,  that  was  before  the  court  at  the  last  December  Term ; 
and  as  to  the  opinion  of  the  court  in  that  case — ante  282. 

According  to  the  decisions  in  this  state,  a  court  of  equity  will  not 
interfere  in  cases  of  disputed  rights  about  property,  until  those 
rights  have  been  determined  at  law,  except  to  prevent  irreparable 
injury  or  a  multiplicity  of  suits.  Coe  v.  Lake  Co.,  37  N.  H.  254; 
Burnham  v.  Kempton,  44  N.  H.  78 ;  B.  &  M.  R.  R.  Co.  v.  P.  &  D. 
R.  R.  Co.,  57  N.  H.  200.  If  irreparable  injury  would  result  to  one 
of  the  parties  to  this  action  by  the  other's  taking  possession  of  the 
office  in  question  without  right,  such  injury  is  quite  as  likely  to  fol- 
low from  the  issuing  of  an  injunction  as  from  withholding  it ;  for, 
until  this  contested  election  is  settled,  it  cannot  be  determined  who 
is  entitled  to  the  office.  If  the  defendant  is  legally  entitled  to  the 
office,  the  possession  of  it  by  the  plaintiff  would  cause  irreparable 
injury  to  the  defendant  in  the  same  way  and  to  the  same  extent  that 
the  defendant's  possession  of  it  w^ould  to  the  plaintiff  if  he  is  legally 
entitled  to  it.  Where  it  is  uncertain  whether  irreparable  injurv  will 
be  prevented  or  caused  by  the  interference  of  a  court  of  equitv,  it 
will  not  act.  But  we  maintain  that  the  plaintiff  or  the  public  is  not 
liable  to  suffer  irreparable  injury,  even  if  the  plaintiff  is  entitled  to 
the  office  in  question,  by  the  defendant's  possession  of  the  office, 
until  the  plaintiff's  right  to  it  is  established  by  an  action  at  law.  The 
defendant,  being  in  possession  of  it  under  a  color  of  title, — namely, 
the  declaration  of  the  vote  in  his  favor  by  the  court  will  be  an  officer 
dc  facto,  and  his  acts  wall  be  valid  so  far  as  the  public  and  third 
persons  are  concerned.  Prescott  v.  Hays,  42  N.  H.  58 :  State  v.  But- 
man.  ib.  404;  2  Dill.  Mun.  Cor.,  s.  892.  n.  He  cannot  take  posses- 
sion of  the  office  until  he  gives  a  bond  for  the  faithful  discharge  of 
his  duties.  G.  L.,  c.  26,  s.  i.  The  plaintiff  can  maintain  an  action 
for  money  had  and  received  against  him  for  the  salary  that  he  re- 


330  OSGOOD  V.   JONES.  §    2 

ceives  while  in  possession  of  the  office  without  right.  2  Saund.  PI. 
&  Ev.  670;  Boyter  v.  Dodsworth,  6  T.  R.  681. 

It  is  not  claimed  that  the  defendant  is  not  amply  able  to  respond 
to  any  judgment  that  may  be  recovered  against  him  in  such  action. 
So  the  public  and  the  plaintiff  are  fully  protected  against  any  injury. 

It  may  be  said  that  two  suits  at  law  might  be  required  to  enable 
the  plaintiff  to  get  his  rights — one  to  get  possession  of  the  office, 
and  the  other  to  get  possession  of  the  salary ;  but  these  would  not 
constitute  a  multiplicity  of  suits  within  the  meaning  of  the  law. 
Bumham  v.  Kempton,  44  N.  H.  95. 

If  the  subject  in  dispute  in  this  case  was  property  (using  that 
word  in  its  common  significance),  and  all  the  elements  existed  in 
the  case  that  exist  in  this  case,  a  court  of  equity  would  not  assume 
jurisdiction  of  it,  but  would  send  the  parties  to  the  law  court  to  set- 
tle their  controversy.  But  this  suit  does  not  relate  to  property ;  the 
title  to  a  public  office  dependent  upon  the  votes  of  the  people  is  the 
subject  in  controversy.  It  is  not  a  fit  subject  for  equity  jurisdic- 
tion. Equity  cannot  try  the  question  any  more  speedily,  fully,  or  fair- 
ly than  a  court  of  law  can.  It  would  not  ordinarily  arrive  at  a  de- 
cision of  the  question  before  the  term  of  office  begins,  even  in  cases 
like  the  present.  The  evidence  in  such  cases  is  likely  to  be  volumi- 
nous and  conflicting,  such  as  a  jury  is  better  able  to  weigh  and  de- 
cide upon  than  a  chancellor.  If  equity  takes  jurisdiction,  its  writ 
of  injunction  will  be  frequently  sought  after,  and  often  obtained. 
The  excitements  of  elections  will  be  continued  and  augmented  by 
such  proceedings  (People  v.  Galesburg,  48  111.  489),  and  the  court 
will  be  burdened  with  controversies  that  w^ould  not  otherwise  arise. 
It  is  better  that  parties  should  be  confined  to  their  legal  remedies, 
even  though  they  seldom  avail  themselves  of  such  remedies,  for  the 
reason  that  such  decisions  are  not  arrived  at  until  the  term  of  office 
has  partly  expired.  It  is  better  that  political  controversies  and  ex- 
citement should  cease  with  the  elections,  even  though  some  officers 
de  facto  be  not  officers  dc  jure.  Cooley  Cons.  Lim.  626,  et  seq. 
And  if  a  few  months  intervene  between  the  elections  and  the  time 
when  the  parties  can  controvert  the  results,  cool  candid  judgment 
may  take  the  place  of  passion,  and  the  peace  of  the  comnnmity  be 
greatly  benefitted  thereby.  We  submit  that  the  rule  as  laid  down  by 
High,  and  supported  Iw  such  weight  and  authority,  is  particularly 
adapted  to  our  election  laws,  as  we  find  ihcm  at  present,  and  we 
urge  that  it  be  followed  in  the  present  case. 

In  High,  Ex.  Rem.,  s.  641,  he  says,  "Since  this  remedy  (quo  zvar- 
raiilo)  is  applicable  the  moment  the  office  or  authority  is  usurped, 
an  injunction  will  not  h*e  to  restrain  the  exercise  of  official  fimc- 
tions,  even  though  there  has  been  no  actual  entry  upon  the  office. 
In  such  case,  the  party  aggrieved  should  wait  until  an  actual  at- 


§    2      AGAINST  MUNICIPAL  CORl'OKATIONS  AXD   PUBLIC  OFFICERS.      33I 

tempt  is  made  to  exercise  the  functions  pertaining  to  the  office,  and 
then  pursue  his  legal  remedy  by  quo  xvarranto." 

Smith,  J.  The  usurpation  of  a  public  office  or  a  public  fran- 
chise is  a  public  wrong.  The  remedy  is,  therefore,  a  public  one, 
carried  on  in  the  name  of  the  public  prosecutor  by  an  information 
in  the  nature  of  a  quo  ■warranto. 

In  the  absence  of  statutory  regulations,  the  common  law  rule  pre- 
vails, requiring  the  proceedings  to  be  instituted  in  the  name  of  the 
state  by  the  attorney  general.  A  private  citizen  is  not  allowed  to 
file  the  information  in  his  own  name,  and  of  his  own  volition,  for 
the  law  does  not  contemplate  the  use  of  this  remedy  by  individual 
citizens  to  redress  the  wrongs  of  the  state.  The  process  is  regarded 
as  in  the  nature  of  a  civil  remedy,  but  retains  the  form  of  a  criminal 
proceeding,  so  far  at  least  as  concerns  the  parties  prosecuting,  and 
the  title  of  the  cause.  High  Ex.  Rem.,  s.  697 ;  Sir  William  Low- 
tlier's  case,  2  Ld.  Raym.  1409;  Wright  v.  Allen,  2  Tex.  158;  Mur- 
phy V.  Bank,  20  Pa.  St.  415;  Commonwealth  v.  Burrell,  7  Pa.  St. 
34;  United  States  v.  Lockwood,  I  Pinn.  (Wis.)  359;  Clearly  v.  De- 
liessline.  i  McCord  35  ;  State  v.  Schinerle,  5  Rich.  299 ;  Lindsey  v. 
Attorney  General,  33  Miss.  508;  State  v.  Gleason,  12  Fla.  190; 
State  V.  Company,  i  Zab.  (N.  J.)  9;  In  re  Bank  of  Mount  Pleasant, 
5  O.  249 ;  State  v.  Moffitt,  5  O.  358 ;  3  Bl.  Com.  262,  263 ;  Peo- 
ple V.  Utica  Ins.  Co.,  15  Johns.  358;  People  v.  Ridgeley,  21  111. 
66;  People  v.  Holden,  28  Cal.  123. 

The  principle  is  a  familiar  one,  that  equity  will  not  interpose  to 
afford  relief  where  full  redress  can  be  had  at  law.  A  quo  warranto 
information  is  a  specified  legal  remedy  to  test  the  right  to  a  public 
office,  and  aftords  a  full  and  adequate  remedy.  It  is  applicable  the 
moment  the  office  or  authority  is  usurped.  It  therefore  is  held  to 
oust  all  equitable  jurisdiction  in  such  a  case,  and  no  injunction  can 
he  granted  to  restrain  the  exercise  of  official  functions.  High  Ex. 
Rem.  s.  641.  The  authorities  in  support  of  this  rule  are  numerous 
and  uniform,  i  Dillon  ]Mun.  Cor.  s.  272  ;  2  Dillon  l^.iun.  Cor.  s.  890 ; 
2  Kent  314;  Pierce  R.  R.  27:  Hughes  v.  Parker,  20  N.  H.  58,  72; 
Updegraff  v.  Crans,  47  Pa.  St.  103  ;  Attorney  General  v.  Insurance 
Company,  2  Johns.  Ch.  371,  376;  People  v.  Insurance  Co.,  15  Johns. 
358,  378,  379 ;  Demarest  v.  Wickham.  63  N.  Y.  320 ;  see  also  cases 
cited  by  the  defendant,  and  extract  from  the  opinion  in  Dickev  v. 
Reed,  78  111.  261,  quoted  in  the  defendant's  brief. 

It  would  seem  to  be  a  fatal  objection  to  the  maintaining  of  this 
bill  that  the  state  is  not  represented.  This  is  a  controversy  between 
two  persons,  each  claiming  that  he  was  elected  to  the  office.  What- 
ever our  decision  might  be  if  this  bill  is  maintained,  the  state  by  its 
prosecuting  officer  might  go  over  the  ground  again  on  a  quo  zvar- 
ranto  proceeding.  It  is  not  an  answer  to  this  objection  to  sav  that 
the  bill  may  be  amended  by  inserting  the  name  of  the  attorney  gen- 


332  OSGOOD  V.   JONES.  §    2. 

eral  as  prosecutor,  for  he  may  not  elect  to  oecome  a  party,  or  to 
adopt  this  process. 

Equitable  relief  is  not  afforded  where  the  title  to  property  merely 
is  involved,  and  where  no  irreparable  injury  appears  until  the  plain- 
tiff's title  has  been  established  at  law.  Burnham  v.  Kempton,  37  N. 
H.  485  ;  Hodgman  v.  Richards,  45  N.  H.  28.  Much  less  should  a 
remedy  in  equity  be  afforded  to  one  who  volunteers  to  redress  a 
public  wrong-,  without  first  having  established  his  right  to  the  office, 
which  he  claims  has  been  usurped.  A  full  and  adequate  remedy  at 
law  is  available  to  the  state  whenever  its  prosecuting  officer  shall 
see  fit  to  set  on  foot  the  process  provided  by  law  for  determining 
whether  a  public  wrong  has  been  sustained. 

Xo  reason  has  been  suggested  why  a  bill  in  equity  has  any  ad- 
vantages over  the  common  law  proceeding  of  quo  rcarranto  for  de- 
termining the  result  of  a  contested  election.  We  discover  no  reason 
why  we  should  depart  from  the  beaten  path.  The  proceeding  by 
quo  warranto  has  had  the  approval  of  the  best  legal  minds  for  gen- 
erations. It  is  simple,  expeditious,  and  under  the  control  of  such 
legal  ability  as  the  state  is  able  to  command  in  the  person  of  its 
principal  prosecuting  officer.  By  refusing  to  sanction  this  innova- 
tion on  the  ancient  mode  of  proceeding,  we  believe  the  result  will  be 
on  the  one  hand  to  discourage  unnecessary  litigation,  and  on  the 
other  that  not  only  public  but  individual  rights  will  be  fully  pro- 
tected. 

Demurrer  sustained. 

Doe,  C.  J.,  dissented.  Stanley,  J.,  did  not  sit ;  the  others  con- 
curred. 

See  also,  Griebel  v.  State,  in  Ind.  369;  Williams  v.  State,  69  Tex.  368; 
State  V.  Meehan,  45  N.  J.  I..  189;  Davidson  v.  State,  20  Fla.  784;  French 
V.  Cowan,  79  Me.  426;  Collins  v.  Huff,  63  Ga.  207;  People  v.  Callaghan, 
83  111.  128;  People  V.  Sweeting,  2  Johns.  (N.  Y.)  184;  Farrington  v.  Turner, 
53  Mich.  27;  State  v.  Stein,  13  Neb.  529;  State  v.  Brown,  5  R.  I.  i ;  Mont- 
gomery V.  State,  107  Ala.  :i72;  Rhodes  v.  Driver,  69  Ark.  606;  People  v. 
Scannell,  7  Cal.  432;  Wason  v.  Major,  10  Colo.  App.  181;  Attorney-General 
V.  Sullivan,  163  Mass.  446;  Peters  v.  Bell,  51  La.  Ann.  1621 ;  State  v. 
Minton,  49  Iowa,  591  ;  Place  v.  People,  192  111.  160,  165 ;  Tillman  v.  Otter, 
93  Ky.  600;  Tarbox  v.  Sughrue,  36  Kan.  225;  State  v.  May,  106  Mo.  488; 
People  v.  Holcomb,  5  Misc.  (N.  Y.)  459;  State  v.  Withers.  121  N.  Car. 
376;  Republica  v.  Wray,  3  Dall.  (Pa.)  490;  Williams  v.  State,  69  Tex. 
MiH;  State  v.  Cunningham,  83  Wis.  90;  State  v.  McGcary,  6q  Vt.  461;  State 
v.  D'Hrien,  47  Oh.  St.  464;  Gilroy's  Appeal,  100  Pa.  St.  5;  Palmer  v.  Foley,- 
45   How.  Pr.    (N.  Y.)    no;   Hull  v.   Superior  Court,  etc.,  63  Cal.   174. 

As  to  what  constitutes  a  public  office,  see  Darley  v.  Reg.,  12  CI.  &  F. 
520;  supra,  p.  250. 

While  the  writ  will  not  lie  to  try  title  to  an  office  which  has  no  legal 
existence  (State  v.  North,  42  Conn.  79,  87),  yet  where  one  assumes  to  hold 
an  office  bv  virtue  of  an  unconstitutional  statute  the  writ  will  be  granted. 
Hinzc  v.  Peo|)le,  92  III.  406;  People  v.  Gartland.  75  Mich.  143;  State  v. 
Urifiil.  37  Neb.  371;  State  v.  Jones,  16  IHa.  306:  State  v.  Scott,  17  Mo. 
521;  Commonwealth  v.  Dcnworth,  145  Pa.  St.  172,  177;  State  v.  Riordan, 
24  Wis    4X4 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND   PUBLIC  OFFICERS.      333 

ATTORXEY  GENERAL  fx  kel.  BASHFORD  v.  BARSTOW. 
1855.     Supreme  Court  of  Wisconsixnt.     4  Wis.  567. 

(Arguments  of  counsel  and  opinions  of  court  on  preliminary 
.questions  are  omitted.  Only  such  portions  of  the  final  opinion  are 
given  as  relate  to  the  jurisdiction  in  quo  zvarranto  directed  to  the 
governor.) 

By  the  court,  Cole,  J. — 

Before  passing  upon  the  motion  which  has  been  made  for  a  jvidg- 
ment  of  ouster  against  the  respondent,  and  establishing  the  right  of 
the  relator  to  the  ofifice  mentioned  in  the  information  filed  in  the 
cause ;  and  also  upon  the  motion  of  the  attorney  general  made  yes- 
terday, to  dismiss  all  further  proceedings  herein ;  before,  I  say,  pass- 
ing upon  these  motions,  I  deem  it  proper  to  review  the  proceedings 
thus  far  had,  and  with  as  much  brevity  as  possible,  place  upon  the 
records  my  reasons  for  thinking  that  the  court  has  properly  enter- 
tained jurisdiction  of  the  cause,  and  has  the  power  to  give  a  final 
judgment.  I  do  not  propose  entering  upon  an  extended  discussion 
of  many  of  the  questions  raised  before  us,  and  shall  refrain  from 
elaborating  any  view  taken  by  the  court  in  the  decisions  already 
given.  Some  repetition  may  unavoidably  occur,  but  no  more  I 
"hope,  than  necessary  to  make  my  observations  clear  and  intelligible. 

On  the  15th  day  of  January,  1856,  the  attorney  general,  the  law 
officer  of  the  state,  filed  in  this  court  an  information  in  the  nature  of 
a  writ  of  quo  ivarranto  upon  the  relation  of  Coles  Bashford,  giving 
the  court  to  understand  and  be  informed  that  the  respondent  for 
the  space  of  one  day  and  upwards  then  last  past,  had  held,  used  and 
exercised,  and  still  did  hold,  use  and  exercise  the  office  of  governor 
of  the  state  of  Wisconsin  without  any  legal  election,  appointment, 
warrant  or  authority  therefor ;  and  that  at  a  general  election  of  the 
state  officers  of  said  state  in  the  several  counties  thereof,  on  the  6th 
day  of  November,  1855,  the  relator  was  duly  elected  and  chosen 
governor  of  the  state  aforesaid,  and  that  the  said  relator  hath  ever 
since  the  seventh  day  of  January,  1856,  and  still  is,  rightfully  en- 
titled to  hold,  use  and  exercise  the  said  office ;  which  said  office  of 
governor  as  aforesaid,  the  respondent  on  the  said  seventh  day  of 
January,  usurped,  intruded  into  and  unlawfully  held  and  exercised, 
and  still  doth  usurp,  intrude  into  and  unlawfully  hold  and  exercise, 
in  contempt  of  the  people  of  this  state,  and  to  their  great  damage 
and  prejudice;  and  prayed  for  due  process  of  law  against  the  re- 
spondent in  this  behalf  to  be  made,  to  answer  the  said  people  by 
what  warrant  he"  claims  to  hold,  use,  exercise  and  enjoy  the  office  of 
governor  of  this  state. 

In  compliance  with  the  prayer  of  this  information,  a  summons  in 


334  ATTOI«s'EY   GENERAL   EX   REL.    UASHFORD  V.    BARSTOW.  ^    2 

due  form  was  issued,  returnable  on  the  fifth  day  of  February,  1856, 
which  summons  was  returned  served  according  to  law. 

Orr  the  22d  day  of  January,  the  relator  by  his  counsel,  filed  a  mo- 
tion to  discontinue  the  information  filed  by  the  attorney  general,  and 
for  leave  to  file  m  lieu  thereof,  an  information  in  the  nature  of  quo 
warranto  upon  his  own  relation,  different  from  the  one  already  filed, 
and  for  liberty  to  prosecute  and  control  the  same,  by  himself  or 
counsel  as  he  should  be  advised ;  and  for  such  other  or  further  order 
as  the  court  should  deem  proper  in  the  premises. 

This  application  was  based  upon  two  grounds:  ist.  That  the  at- 
torney general  having  refused  to  file  a  special  information  prepared 
bv  the  relator,  but  filing  a  different  one,  the  relator's  right  to  file 
one  on  his  own  relation  and  prosecute  it  to  final  judgment  became 
perfect  under  the  act  of  1855,  ch.  — ;  and  2d. — An  alleged  hostility 
or  unfriendliness  upon  the  part  of  the  attorney  general  to  the  in- 
terests, rights  and  success  of  the  relator.  The  motion  was  resisted 
on  argument  by  the  attorney  general  on  behalf  of  the  state,  and  by 
the  counsel  for  the  respondent  who  that  day  entered  his  appearance 
in  the  cause.  The  motion  was  overruled,  the  court  holding  upon 
the  first  point  that  the  attorney  general  had  substantially  complied 
with  the  act  of  1855,  in  filing  an  information  adequate  to  all  the  pur- 
poses of  the  suit ;  and  upon  the  second  point,  that  the  attorney  gen- 
eral might  control  the  proceeding  so  long  as  he  prosecuted  with 
fidelity ;  but  if  he  should  act  in  bad  faith  toward  the  relator,  or  at- 
tempt to  fritter  away  his  rights,  the  court  would  interfere  for  the 
protection  of  them. 

On  the  25th  a  rule  was  entered  by  the  attorney  general  requiring 
the  respondent  to  plead  to  the  information  in  such  time  as  the  court 
should  direct.  The  court  required  the  respondent  to  plead  on  or 
before  the  fifth  day  of  February  then  next  ensuing. 

On  the  2d  day  of  February,  the  counsel  for  the  respondent  filed 
their  motion  to  quash  the  summons  issued  herein,  and  to  dismiss  the 
same  and  all  proceedings,  for  the  reason  that  the  court  had  no  juris- 
diction in  the  premises.  By  order  of  the  court,  the  argument  of  this 
latter  motion  came  on  for  argument  on  February  11,  and  the  coun- 
sel for  the  respondent  then  endeavored,  with  great  zeal  and  earnest- 
ness, to  sustain  their  motion,  by  insisting  uj^on  and  establishing  the 
position,  that  even  where  there  is  an  usurpation  of  the  office  of  gov- 
ernor of  the  state,  l)y  a  ]H'rson  not  lawfully  entitled  to  exercise  its 
duties,  this  court  has  no  constitutional  power  to  entertain  a  proceed- 
ing for  his  removal,  but  that  the  iicrson  so  intruding  could  only  be 
reached  and  removed  by  revolutionary  force.  This  doctrine  ap- 
peared to  me  bold  and  startling  when  advanced,  and  does  still,  for 
the  reason,  probably,  that  I  had  supposed  we  were  living  under  a 
constitutional  government,  and  had  a  peaceable  redress  for  a  polit- 
ical evil  of  this  sort.    The  court  thought  the  jiroposition  an  unsound 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      335 

one,  and  overruled  the  motion,  deciding-  the  principle,  that  where 
there  ivas  an  iiitnisio)i  without  color  of  right,  even  into  the  office  of 
the  governor  of  this  state,  it  had  the  pozver  of  entertaining  a  pro- 
ceeding to  inquire  into  the  right  of  a  person  thus  holding  the  office, 
and  to  remove  the  intruder. 

On  the  25th  of  February,  the  respondent  filed  a  plea  in  abatement 
to  the  jurisdiction  of  the  court,  setting  forth  in  said  plea,  that  by 
the  laws  of  the  state  of  Wisconsin,  regulating  the  manner  of  con- 
ducting general  elections,  and  the  canvas  of  votes  thereat  applicable 
to  the  election  stated  in  the  said  information,  it  became  and  was  the 
duty  of  the  board  of  state  canvasers,  upon  a  statement  of  the  whole 
number  of  votes  given  at  said  election,  and  for  whom  given  for  the 
said  office  of  governor  to  be  by  them  made,  and  certified  to  be  cor- 
rect, and  subscribed  by  their  names,  to  determine  what  person  was, 
by  the  greatest  number  of  votes,  duly  elected  to  said  office,  and  to 
make  and  subscribe  on  such  statement,  a  certificate  of  such  deter- 
mination, and  deliver  the  same  to  the  secretary  of  state,  and  there- 
upon it  became  and  was  the  duty  of  the  said  secretary  of  state,  with- 
out delay,  to  make  oiit  and  transmit  to  the  person  thereby  declared 
to  be  elected  to  the  office  of  governor,  a  certificate  of  his  election, 
certified  by  him  tmder  his  seal  of  office ;  that  in  fact  Alexander  T. 
Gray,  secretary  of  the  state,  Edward  H.  Jansen,  State  Treasurer, 
and  George  B.  Smith,  attorney  general,  who  then  constituted  the 
said  board  of  state  canvassers,  met  together  at  the  office  of  the  sec- 
retary of  state,  in  the  capitol  at  Madison,  on  the  15th  day  of  Decem- 
ber, 1855,  the  day  duly  appointed  pursuant  to  law  for  that  purpose, 
and  did  proceed  according  to  law  to  make  a  statement  of  the  whole 
number  of  votes  given  at  said  election,  for  the  said  office  of  gov- 
ernor, showing  the  names  of  the  persons  to  whom  such  votes  were 
given  for  said  office,  and  the  whole  number  given  to  each  one,  dis- 
tinguishing the  several  counties  in  which  they  were  given,  and  did 
certify  such  statement  to  be  correct,  and  subscribed  vheir  names 
thereto,  and  that  they  did  thereupon  determine  and  certify  that  by 
the  greatest  number  of  votes  polled  at  said  election,  the  respondent 
was  duly  elected  to  said  office,  of  governor,  for  the  .term  of  two 
years,  commencing  on  the  first  Monday  of  January,  1856,  and  that 
they  did.  in  pursuance  of  law,  make  and  subscribe  on  such  statement 
a  certificate  of  such  determination,  in  due  form  of  law,  and  did  duly 
deliver  the  same  to  the  secretary  of  state;  and  that  thereupon,  in 
pursuance  of  law,  the  said  secretary  of  state  did  make  out  and  trans- 
mit to  said  respondent,  a  certificate  of  his  election  to  the  said  office 
of  governor,  of  said  state  for  the  term  aforesaid,  in  due  form  of  law, 
and  duly  certified  by  him  under  his  seal  of  office.  And  that  said  cer- 
tificate was  dulv  received  by  said  respondent,  who  thereupon  duly 
qualified  himself,  by  taking  the  customary  and  proper  oath  of  office 
as  such  governor,  and  entered  into  the  possession  of  such  office  as  he 


336  ATTORNEY   GENERAL   EX    REL,    CASTIFORD   V.    BARSTOW.  §    2 

lawfully  might;  duly  certified  copies  of  which  said  statement  And 
certificates  authenticated  under  the  great  seal  of  the  state,  the  re- 
spondent here  in  court  produces  and  shows  to  the  court.  Certified 
copies  (under  the  seal  of  the  secretary  of  state)  of  the  statement 
made  bv  the  board  of  state  canvassers,  of  the  official  oath  of  the  re- 
spondent, and  of  the  certificate  of  election,  accompanied  this  plea  as 
exhibits.  The  plea  was  demurred  to,  several  clauses  of  demurrer 
being  assigned.  The  demurrer  ivas  sustained  upon  the  ground  that 
the  matters  contained  in  the  plea,  if  good  at  all,  should  he  pleaded 
in  bar  to  the  action,  and  did  not  go  to  the  jurisdiction  of  the  court. 
Consequently  judgment  of  respondcas  ouster  was  given  on  the  de- 
murrer, and  the  respondent  had  four  days,  until  the  eighth  instant 
to  file  his  plea  in  bar.  He  had  purposely  made  default.  On  the 
eleventh,  the  counsel  for  the  relator  moved  for  final  judgment. 
While  this  motion  for  judgment  was  under  advisement,  the  attorney 
general,  on  the  eighth  instant,  filed  a  motion  to  discontinue  the 
preceding,  and  this  motion  is  resisted  by  the  relator.  I  have  been 
thus  minute  in  giving  a  full  history  of  the  cause ;  have  stated  the 
motions  made  therein  as  it  progressed,  and  given  the  rulings  of  the 
court,  in  order  that  we  might  have  the  whole  case  fairly  before 
us.  We  now  see  what  has  been  done,  and  we  now  naturally  arrive 
at  the  important  question  involved  in  the  case,  that  is,  whether  the 
court  in  entertaining  this  proceeding  has  usurped  a  power  not  given 
to  it  by  the  constitution  and  laws  of  the  state?  If  it  has,  the  path  of 
duty  is  plain.  It  should  go  no  further  but  retrace  its  steps,  and 
cease  to  make  encroachment  upon  the  other  powers  of  the  govern- 
ment. But,  if  in  all  this  matter,  it  has  exercised  a  function  delegated 
to  it  by  the  constitution ;  if  it  has  proceeded  in  this,  as  in  all  other 
cases  which  come  before  it,  merely  in  the  discharge  of  its  appro- 
priate duty,  of  determining  and  settling  the  rights  of  parties,  and 
not  creating  these  rights,  then  it  must  go  forward  to  judgment, 
however  unpleasant  and  delicate  a  duty  that  may  be,  and  regardless 
of  any  and  all  conseciucnces  that  may  result  from  its  constitutional 
action.  All  that  we  can  know  is  our  duty.  We  cannot  look  beyond 
that.  Here  we  must  firmly  stand  to  our  public  trusts,  until  the 
constitution  falls  about  us  in  the  ruins.  And  it  may  not  be  altogether 
ina])|)ropriate.  after  what  has  fallen  from  counsel  in  court,  and  im- 
l)Ulations  made  elsewhere,  for  me  to  say  that  I  enter  upon  this 
discussion  with  all  the  candor  and  impartiality  I  am  able  to  exercise, 
and  with  the  directness  that  the  gravity  of  the  subject  demands. 
I  am  deeply  sensible  of  all  my  responsibility  at  this  moment.  I  am 
unconscious  of  any  partisan  bias  or  personal  prejudice  that  could 
warp  my  judgment,  or  cloud  my  understanding,  and  least  of  all, 
have  T  any  desire  to  extend  the  jurisdictif)n  of  this  court  one  hair 
beyond   its  constitutional   limits.     "''     *     ''' 

Scriif)ii    I    f)f    this    statute    fCh.    126    R.    S.)    provides    that   "an 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND   PUBLIC  OFFICERS.      2)2)7 

information  in  the  nature  of  quo  zvarranto  may  be  filed  in  the 
supreme  court,  either  in  term  time  or  vacation,  by  the  attorney 
general,  against  individuals,  upon  his  own  relation,  or  upon  the 
relation  of  any  private  party,  and  without  applying  to  such  court 
for  leave,   in   either  of  the   following   cases : 

"ist.  When  any  person  shall  usurp,  intrude  into,  or  unlawfully 
hold  or  exercise  any  public  office,  civil  or  military,  or  any  franchise 
within  this  state,  or  any  office  in  any  corporation  created  by  the 
authority  of  the  state."  The  subsequent  sections  of  the  statute 
make  ample  provisions  by  which  the  proceeding  can  be  prosecuted 
to  judgment,  and  authorize  the  court  to  pass  as  well  upon  the 
right  of  the  respondent  to  hold  the  office,  as  upon  the  right  of  the 
person  setting  up  his  claim  thereto.  The  scope  and  object  of  the 
statute  evidently  is,  to  provide  a  method  by  which  contestants  to 
office  could  try  their  respective  rights.  Then  is  the  office  of  the 
governor,  which  is  now  in  controversy,  a  public  and  civil  office  with- 
in the  meaning  of  the  statute?  We  have  already  decided  that  it 
was,  and  the  chief  justice  has  stated  the  grounds  of  that  opinion. 
The  reasons  for  considering  the  office  of  governor  a  civil  office,  un- 
der the  constitution  and  laws  of  the  state,  and  nothing  more  than 
a  civil  office  of  high  dignity  and  trust,  appear  to  my  mind  perfectly 
irresistible  and  conclusive.  But  I  do  not  deem  it  necessary  to  go 
over  them.  I  am  willing  to  rest  the  question  upon  the  argument 
contained  in  the  opinion  to  which  I  have  referred,  and  which 
is  before  the  people  of  the  state.  The  people  are  as  capable  of 
understanding  the  merits  of  the  objection,  that  the  office  of  governor 
is  not  a  civil  office  under  the  constitution,  and  within  the  meaning 
of  this  statute,  as  professional  men.  I  do  not  think  that  the 
word  "office"  is  used  either  in  the  constitution  or  in  this  statute 
in  a  restricted  sense ;  but  in  its  most  popular  and  general  ac- 
ceptance. //  applies  to  any  place  which  imposes  upon  him  who  oc- 
cupies it  the  performance  of  duties  of  a  public  nature. 

I  anticipate  an  objection  that  will  be  made  to  this  liberal  con- 
struction of  the  statute.  Tt  will  be  said  that  the  place  of  a  mem- 
ber of  the  legislature  is  an  office,  while  confessedly  the  court  has  no 
right  under  this  srature,  to  try  the  claims  of  contestants  to  a  seat 
in  the  legislature.  Obviously  not ;  and  for  the  reason  that  the 
constitution  expressly  declares,  sec.  7,  art.  4,  "that  each  house 
shall  be  the  judge  of  the  elections,  returns  and  qualifications  of  its 
own  members."  It  is  a  familiar  rule  of  construction,  that  a  general 
grant  of  power,  or  a  general  statute,  may  be  controlled  in  a  particu- 
lar case,  by  a  special  grant.  And  this  must  be  so.  in  order  to  give 
effect  to  the  whole  instrument,  and  render  it  consistent  with  itself. 
To  my  mind,  this  is  a  full  and  satisfactory  answer  to  the  whole  ques- 
tion and  objection.  And  here  it  seems  to  me  we  might  safely  stop. 
For  if  an  argument  could  not  be  drawn  from  any  source  in  favor  of 


338  ATTORNEY  GENERAL  EX  REL.  BASHFORD  V.   BARSTOW.  §    2 

the  jurisdiction  of  this  court  over  this  proceeding,  it  might  be 
rested  on  section  3,  article  7  of  the  constitution,  and  chapter  126 
of  the  revised  statutes ;  and  it  would  stand  upon  impregnable  grounds. 
Concede  that  this  court  has  original  jurisdiction  of  the  w^rit  of 
quo  zvarranto  by  the  constitution — concede  that  chapter  126,  under 
which  this  proceeding  is  had,  is  constitutional,  and  all  the  rest  follows 
as  irresistibly  as  the  law  of  reason.  There  is  no  escape  from  it. 
But  the  argument  in  favor  of  the  jurisdiction  of  this  court  is  not  ex- 
hausted.    And  let  us  look  at  this  matter  in  another  light. 

Sec.  2,  art.  7  of  the  constitution  reads  as  follows :  "The  judicial 
power  of  this  state,  both  as  to  matters  of  law  and  of  equity,  shall 
be  vested  in  a  supreme  court,  circuit  courts,  courts  of  probate  and 
justices  of  the  peace.  The  legislature  may  also  vest  such  jurisdic- 
tion as  shall  be  deemed  necessary  in  municipal  courts,  and  shall 
have  power  to  establish  inferior  courts  in  the  several  counties,  with 
limited  civil  and  criminal  jurisdiction  providing,"  etc. 

Here,  it  will  be  observed,  by  words  the  most  apt,  in  language 
most  clear,  comprehensive  and  explicit,  that  the  judicial  power 
of  the  state  is  vested  in  certain  courts.  Of  course,  this  grant  of 
power  is  to  be  taken  in  connection  with  the  exceptions  elsewhere 
contained  in  the  constitution.  The  senate  is  made  the  court  for  the 
trial  of  impeachments,  sec.  i,  art.  7.  And  there  may  be  some  other 
exceptions,  though,  none  such  occur  to  my  mind  at  the  present  mo- 
ment. But  otherwise,  this  entire  judicial  power  is  vested  in  the 
courts,  without  limitation  or  restriction.  Whether  this  was  a  wise 
grant  of  power  is  not  now  open  for  controversy.  Were  we  framing 
a  constitution  with  new  powers,  instead  of  administering  one  with 
clearly  defined  powers,  then  the  inquiry  would  be  pertinent ;  but  it 
is  not  now.  We  then  might  inquire  whether  such  an  extensive 
grant  of  judicial  power  should  be  given  to  the  courts  of  this 
state.  But  as  the  people  have  seen  fit  to  delegate  it  to  the  state 
courts,  they  must  exercise  it  when  called  upon  or  set  in  motion,  or 
prove  recreant  to  the  duty  imposed  upon  them  by  the  constitution. 
T  then  ask,  is  the  determination  of  rights  of  persons  claiming  to 
hold  and  exercise  the  office  of  governor  of  the  state,  the  proper 
and  legitimate  exercise  of  judicial  power?  Is  such  a  matter  a 
proper  subject  for  judicial  inquiry  and  investigation?  If  not,  why 
not?  Is  it  because  the  controversy  is  about  an  ofifice  of  high  dig- 
nity and  importance?  But  docs  the  high  character  of  the  office 
render  tlic  right  of  him  to  hold  it  less  valuable,  or  less  an  object 
of  the  protection  of  the  law?  Courts  of  justice  inquire  into  and 
srttle  the  conflicting  claims  of  persons  to  the  office  of  constable  or 
justice  of  tbe  peace,  a  sheriff  of  the  county  and  other  subordinate 
officers. 

Tlic  rights  of  those  officers  are  not  considered  beneath  the  pro- 
tection  of  the   court.      And   it   would  *seem   that   the   right   to   the 


§    2      AGAINS'J'    MfXICII'AL  CORPORATIONS  AND  PUI'.LIC  OFFICERS.      339 

hig-h  office  of  governor  ought  not  to  be.  This  is  the  personal 
aspect  of  the  question.  How  is  it  upon  the  ground  of  public 
policy?  The  public  interests  are  most  deeply  involved  in  the 
matter.  For  there  does  seem  to  be  a  greater  political  necessity 
for  some  constitutional  power  of  removing  an  intruder  from  an 
office  of  inconsiderable  importance.  In  the  latter  case,  the  public  wel- 
fare ma}'  not  be  so  seriously  endangered.  The  existence  and 
tranquillity  of  the  state  may  not  be  imperiled.  But  if  a  man  can 
usurp  the  executive  chair,  and  there  be  no  power  to  remove  him, 
constitutional  government  is  at  an  end.  There  is  no  use  in  trying 
to  disguise  the  matter.  For  if  a  man  can  usurp  the  chair  of  the 
executive  department  for  a  day,  and  cannot  be  reached,  he  can 
continue  his  power  at  wall.  We  all  know  that  the  office  of  gov- 
ernor is  one  of  grave  responsibility.  The  proper  discharge  of  its 
duties  requires  no  common  degree  of  talents,  of  sagacity  and  moral 
intregrity.  The  dignity,  the  honor,  the  peace  of  the  state  are  often 
committed  to  the  prudence  of  the  governor.  He  is  to  see  that  the 
laws  of  the  state  are  to  be  faithfully  executed.  So  it  does  not  appear 
to  me  that,  whether  the  controversy  is  regarded  as  involving  a 
l)rivate  right,  which  is,  if  possible,  to  be  protected,  or  if  it  is  re- 
garded in  a  broader  and  more  general  aspect,  as  involving  the 
interests  of  the  state,  a  writ  of  quo  zvarranto  ought  to  lie  to  inquire 
by  what  warrant  a  person  acted  as  governor. 

The  office  was  evidently  regarded  as  one  of  great  consideration 
by  the  framers  of  the  constitution.  Hence,  we  find  that  certain 
qualifications  are  necessary  in  order  to  entitle  one  to  be  eligible 
to  it.  He  must  be  a  citizen  of  the  United  States  and  a  qualified  elec- 
tor of  this  state,  see  sec.  2,  art.  5.  But  if  the  office  is  an  inviolable 
one,  and  there  is  no  powder  in  the  state  competent  to  inquire  into 
the  right  of  a  person  to  hold  it,  what  is  the  value  of  these  consti- 
tutional safeguards?  Are  they  parchment  guaranties  without  effi- 
cacy and  without  value?  Suppose  a  person  not  possessing  the 
qualifications,  being  neither  a  citizen  of  the  United  States,  or  an 
elector  of  this  state,  receives  votes  for  the  office  of  governor,  claims 
to  be  elected,  takes  and  subscribes  the  oath  of  office,  gets  .possession 
of  the  records  and  papers  belonging  to  it,  is  there  no  redress?  Is 
there  no  power  competent  to  inquire  into  his  right  to  hold  the  office, 
and  protect  the  constitution  from  invasion? 

Take  another  case.  Suppose  the  governor  should  be  impeached 
before  the  court  of  impeachment,  for  corrupt  conduct  in  office  and 
for  crimes  and  misdemeanors,  and  should  be  found  guiltv  by  the 
court.  The  constitution  says  that  such  a  judgment  shall  not  only  be  a 
disqualification  forever  after  holding  any  office  of  honor,  trust  or 
profit,  under  the  state,  but  shall  be  a  sufficient  cause  of  removal, 
the  instant  the  judgment  is  rendered.    That  is  the  spirit  if  not  the 


340  ATTORNEY  GENERAL  EX   REL.   BASHFORl)  V.    I'.ARSTOVV.  §    2 

exact  letter  of  the  provision.  Still  the  person  thus  disqualified 
insists  upon  acting  as  governor.  Is  there  no  way  that  this  right 
so  to  act  can  be  inquired  into  and  a  judgment  of  ouster  given? 
It  may  be  said  that  these  are  improbable  cases,  or  very  extreme  ones, 
But  are  thcA-  so  improbable,  or  so  remote  as  never  to  happen? 
And  if  thev  should  happen  where  is  the  remedy?  What  power  of 
the  state  can  give  relief?  Are  we  remediless?  Instances  of  this 
kind  might  be  multiplied  to  any  extent.  I  put  them,  because  many 
of  them  were  stated  during  the  progress  of  the  argument  and  they 
are  cases,  too,  easily  understood.  And  the  question  returns  upon 
lis,  where  is  the  protection  of  the  people  against  them?  Counsel 
seem  to  feel  the  necessity  that  there  should  be  some  remedy  for 
them,  and  they  significantly  hinted  where  that  remedy  was  to  be 
found.  It  was  to  be  found  in  a  revolution.  Ah !  but  that  is  not 
a  constitutional  remedy.  It  is  one  above  the  constitution.  But  we 
are  now  considering  what  means  the  constitution  has  provided  for  its 
own  preservation.  For  if  it  has  not  those  means,  ample,  adequate 
and  equal  to  the  political  emergency  of  such,  and  other  like  cases, 
it  is  hardly  worth  spending  any  breath  upon. 

Again :  section  three,  article  five  of  the  constitution  reads  as 
follows :  "The  governor  and  lieutenant  governor  shall  be  elected 
by  the  qualified  electors  of  the  state,  at  the  times  and  places  of 
choosing  members  of  the  legislature.  The  person  respectively  hav- 
ing the  highest  number  of  votes  for  governor  and  lieutenant  gov- 
ernor shall  be  elected."  A  contest  arises  between  two  citizens  of  the 
state,  who  were  candidates  for  the  office,  as  to  who  received  the 
highest  number  of  votes ;  for  whoever  it  may  be,  who  has  received 
the  highest  number  of  votes,  unless  constitutionally  ineligible,  must 
be  governor.  So  the  constitution  declares.  It  cannot  be  said  that 
this  is  an  imaginary  or  improbable  case.  It  has  already  happened, 
and  in  this  po]nilar  government,  it  is  quite  as  likely  to  happen 
again.  Now,  in  what  form  is  this  to  be  settled?  Where  and  by 
whom  is  it  to  be  determined,  as  to  who  received  the  highest  number 
of  votes?  By  the  legislative,  by  the  executive  or  by  the  judicial 
department  of  the  government?  Perhaps  it  will  be  said  that  there 
is  created  by  statute  a  competent  tribunal  to  try  and  determine  all 
.such  questions,  towit :  the  board  of  state  canvassers.  But  can  any- 
one point  to  a  provision  in  chapter  6,  R.  S.,  and  that  is  the  only 
law  we  have  upon  the  subject  of  canvassing  votes  for  state  officers, 
which  by  the  remotest  inqilication,  in  case  of  a  contest  for  a  state 
office,  authorizes  the  board  ni  slate  canvassers  to  make  up  an  issue, 
impanel  a  jury,  summon  witnesses,  take  proof  as  to  alleged  frauds, 
errors  or  mistakes  on  Ihc  part  of  the  town  and  county  board  of 
canvassers,  and  judicially  determine  who.  under  the  constitution, 
is  ontitlerl  to  the  office?  No  such  ]irovision  can  be  found.  The 
legislature  never  gave  them  any  such  power,  and  it  does  not  apper- 


§    2      AGAINST   MUNICIPAL  CORPORATIONS  AND   PUBLIC  OFFICERS.      34 1 

tain  to  their  office  under  the  constitution.  Whether  it  would  have 
been  competent  for  the  legislature — under  the  constitution  which 
delegates  all  the  judicial  power  of  the  state  to  the  courts  of  the 
state — to  give  to  the  board  of  state  canvassers  judicial  authority 
to  settle  and  adjudicate  rights  of  this  nature,  it  is  not  necessary 
to  inquire.  They  have  not  given  them  any  such  power.  Their  du- 
ties are  strictly  ministerial. 

They  are  to  add  up  and  ascertain,  by  calculation,  the  number 
of  votes  given  for  any  office.  They  have  no  discretion  to  hear 
and  take  proof;  as  to  frauds,  even  if  morally  certain  that  mon- 
strous frauds  have  been  perpetrated.  The  95th  section  of  this  stat- 
ute gives  them  no  such  power.  And  it  is  idle  to  look  for  it  else- 
where, for  they  have  not  got  it.  So  the  question  again  recurs, 
what  power  of  the  government  can  give  a  speedy  and  adequate 
remedy?  What  power  of  this  government  is  to  settle  this  con- 
troversy? I  think  that  the  conclusion  is  irresistible,  that  it  is  the 
judicial  power.  If  the  contest  cannot  be  settled  in  the  courts  of 
the  state,  it  cannot  be  settled  at  all.  And  if  redress  cannot  come 
from  that  source,  it  can  only  come  in  a  violent  manner  by  a  revo- 
lution. And  is  this  government  thus  powerless,  impotent  to  cor- 
rect an  evil  of  this  kind,  impotent  to  shield  its  own  high  offices 
from  usurpation?  I  cannot  believe  it.  Ordinarily  the  courts  have 
been  found  entirely  adequate  to  settle  and  determine  contests  for 
office.  It  has  been  done  in  almost  numberless  cases  in  England. 
In  the  state  of  New  York,  under  a  constitution  which  distributes  the 
powers  of  the  government,  and  where  there  is  a  statute  for  can- 
vassing the  votes  substantially  like  our  constitution  and  our  statute 
upon  that  subject,  this  power  to  determine  the  rights  of  persons 
to  office  has  been  repeatedly  settled  by  the  courts.  The  leading 
cases  are  The  People  v.  Clark,  4  Cowen,  95  ;  The  People  v.  Richard- 
son, 4  id.  57 ;  The  People  v.  Ferguson,  8  id.  102 ;  The  People  v. 
Vail.  20  Wend.  12;  Er  parte  Heath  cf  al.  3  Hill  42;  The  People  v. 
Seaman,  5  Denio.  410;  Cook  v.  Welch,  4  Selden  ;  same  case,  14  Bar. 
Sup.  Ct.  R.,  259,  and  the  recent  unreported  case  of  Davis  v.  Cowles. 
These  offices  were  town,  county  and  state  offices.  The  court  in 
Massachusetts  have  also  had  like  suits  before  them,  and  I  am  not 
aware  that  in  an}-  of  these  cases,  the  jurisdiction  of  the  courts  were 
seriously  questioned.  This  court  has  likewise  adjudicated  and  set- 
tled the  rights  of  contestants  to  office  in  two  instances  at  this 
term.  State  ex  rcl.  Carpenter  v.  Ely,  and  State  ex  rel.  Ege  v. 
Rust,  et  al.  And  one  of  the  able  counsel  for  the  respondent  Olr. 
Arnold)  admitted  upon  an  argument  in  this  cause,  that  the  court 
could  inquire  into  the  right  of  a  person  holding  any  state  office 
other  than  that  of  governor.  And  he  failed.  T  think,  to  show  that 
the  same  power  might  not  also  settle  and  determine  the  rights 
of  persons  claiming  that  office. 

The  objection   to  the  exercise  of  the   jurisdiction  of  this   court 


342  ATTOKXEV  GENERAL  EX  REL.   BASHFORD  V.    BARSTOW.  §    2 

to  entertain  a  proceeding  to  determine  the  right  of  a  person  to 
hold  and  enjoy  the  office  of  governor  is,  that  it  is  dangerous  to 
the  independence  of  the  executive  department  of  the  government. 
The  executive  power  of  the  state  is  vested  in  the  governor  by 
the  constitution,  and  hence  it  is  said,  you  cannot  interfere  with  the 
person  acting  as  governor  without  disturbing  that  department. 
Who  does  not  see  the  fallacy  of  this  reasoning  and  the  utter  con- 
fusion of  ideas  in  the  very  statement  of  the  proposition?  It  assumes, 
in  the  first  place,  the  very  point  in  controversy,  towit :  the  right 
of  the  person  acting  as  the  governor,  to  the  office.  This  mquiry  pro- 
ceeds upon  the  hypothesis,  that  this  right  is  disputed,  contested; 
that  the  respondent  is  an  usurper.  But  whether  he  is  or  not  is  a 
question  of  fact  to  be  established  by  proof  alone.  It  is  certainly  very 
illogical  to  commence  reasoning  upon  a  proposition  by  begging 
the  question.  The  question  here  is,  who  is  entitled  to  hold  the 
office  of  governor  in  this  state?  The  answer  given  is,  that  the 
respondent  is  the  governor,  and  there  the  argument  ends.  Concede 
it,  and  there  is  nothing  to  inquire  into ;  no  right  to  be  ascertained, 
no  subject  for  judicial  investigation.  But  whether  the  respondent 
is  the  governor  or  not  is  the  issue.  But  a  still  greater  error  in  the 
reasoning  upon  this  case  consists  in  confounding  the  person  who 
holds  an  office  with  the  office  itself.  By  the  general  theory  and 
principle  of  our  government,  the  legislative,  executive  and  judicial 
departments  are  equal,  co-ordinate  and  independent ;  each  within  the 
sphere  of  its  powers.  Admit  it,  and  what  follows?  It  is  said  that 
the  person  holding  the  office  of  governor  is  the  executive  depart- 
ment, or  to  state  the  proposition  more  intelligibly,  the  department 
and  person  are  one  and  indivisible.  Here  is  the  vice  of  the  most  of 
the  reasoning  upon  this  subject.  Gentlemen  will  not  discriminate  or 
do  not  discriminate  between  the  office  and  the  officer,  a  department 
of  the  government  and  a  person  exercising  and  acting  in  that  de- 
partment. Yet,  to  my  mind,  there  is  no  difficulty  whatever  in  mak- 
ing a  distinction.  I  can  easily  conceive  how  an  intruder  may  be 
removed  from  a  department  without  interfering  with,  or  disturbing 
or  impairing  one  jot  or  tittle  of  the  powers  of  such  department. 
Were  it  not  for  the  conceded  ability  of  the  gentlemen  who  h?.VQ 
advanced  this  argument,  vitiated  by  this  palpable  fallacy,  involved 
in  it,  I  should  not  deem  it  worthy  a  moment's  examination.  As  it 
is,  it  must  be  treated  with  sufficient  respect  to  explode,  if  pos- 
sible, the  absurdity.  And  I  therefore  say  that  there  is  not,  and 
from  the  nature  of  the  case  there  cannot  be,  any  resemblance,  any 
similitude,  any  necessary  connection,  much  less  identity,  between 
a  clcpartment  of  the  government,  and  the  person  exercising  the 
duties  of  the  department.  A  department  is  a  division  or  classifica- 
tion of  a  certain  kind,  of  the  powers  of  the  government.  It  is  not 
necessary  to  define  what  a  person  is,  only  negatively,  and  say  that 
a  person  is  not  a  department.     Consider  thai  the  agents,  the  officers 


§    2      AGAINST   MUNCIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      343 

of  these  departments  have  been  successively  changing  since  the 
adoption  of  the  constitution.  Yet  the  departments  remain  un- 
changed. Some  have  died  perhaps,  and  others  removed  from  the 
state ;  but  the  department  whose  duties  they  discharged  are  still 
unimpaired.  So  that  this  court  can  sit,  examine  and  decide  upon 
the  rights  of  contestants  to  the  office  of  governor,  and  give  judgment 
against  one,  and  for  another,  without  breaking  down  or  disturbing 
the  executive  department  of  the  government. 

Another  conclusion  more  alarming,  and  more  consequential  than 
any  yet  noticed,  is  said  to  follow  from  the  independence  and  co- 
equality  of  the  departments  of  the  government.  It  is  the  power 
of  the  person  holding  the  office  of  governor  to  determine  his  own 
right  to  it.  Whence  does  he  derive  this  power?  As  observed  by 
the  chief  justice,  in  the  opinion  delivered  by  him,  you  look  in 
vain  through  the  constitution  and  the  laws  for  a  provision  giving 
him  this  power.  If  he  has  it  at  all,  it  is  underived  and  inherent 
in  his  office.  It  is  a  high  prerogative,  not  claimed  by  royalty  itself, 
unless  in  the  person  of  a  despot.  I  shall  be  slow  to  believe  that 
it  belongs  to  any  officer  of  this  government. 

Much  has  been  said  about  what  this  court  must  take  judicial 
notice  of;  as  that  it  must  judicially  know  that  the  board  of  state 
canvassers  canvassed  the  votes  cast  at  the  last  state  election ;  deter- 
mined upon  such  canvass  that  the  respondent  in  this  cause  has 
received  a  majority  of  the  votes ;  that  they  made  the  statement  re- 
quired by  law,  certified  to  it,  and  filed  it  in  the  office  of  the  secretary 
of  state,  and  that  thereupon  the  secretary  of  state  gave  the  re- 
spondent a  certificate  of  election  under  the  seal  of  the  state,  and 
that  the  respondent  is  the  acting  governor  of  the  state ;  I  suppose 
we  do  take  judicial  notice  that  the  respondent  is  the  acting  governor 
in  the  same  sense,  and  in  no  other,  that  we  take  judicial  notice  of 
who  is  the  acting  sherifif  or  circuit  judge  of  this  county.  The 
right  of  persons  to  hold  office  cannot  be  inquired  into  collaterally.  It 
can  only  be  done  by  a  direct  proceeding  of  this  nature.  The  deter- 
mination of  the  board  of  state  canvassers,  and  the  certificate  of  elec- 
tion, we  can  only  take  notice  of  when  it  is  set  up  in  the 
proper  plea  before  us.  This  has  not  been  done,  the  counsel  declin- 
ing to  plead  them  in  bar  to  this  proceeding.  But  this  court  cannot 
know,  except  by  laborious,  long  continued  and  systematic  inquiry, 
all  about  the  votes  cast  at  the  last  election — whether  there  were 
any  frauds  or  mistake  in  the  canvassing  or  return  of  votes  that 
affected  or  destroyed  the  right  of  a  person  to  an  office.  And  I 
suppose  this  rule  is  one  of  general  application.  These  observations 
might  be  extended,  but  I  do  not  deem  it  necessary.  I  have  given 
some  of  the  reasons  which  have  led  me  to  the  conclusion  that, 
under  our  constitution  and  laws,  this  court  has  jurisdiction  of  this 
proceeding.  That  is  really  the  great  question  in  the  case,  and  the 
only  one  of  abiding  interest  which  the  court  has  been  called  upon 


344  ATTORNEY  GENERAL  EX   REL.    BASHFORD  V.   BARSTOW.  i;    2 

to  decide.  1  desire  that  this  point  should  stand  boldly  out  upon 
the  record  of  the  case,  and  I  shall  not  attempt  to  divert  the  public 
attention  from  that  point  to  minor  issues.  I  am  prepared  to  take 
my  share  in  the  responsibility  of  this  decision.  This  court  has 
not  sought  this  discussion,  this  apparent  conflict  with  the  other 
powers  of  the  government.  The  questions  have  been  presented 
here  in  the  regular  order,  and  we  have  decided  no  more  nor  no 
faster  than  the  record  compelled  us  to  decide.  And  after  the 
angry  passions  of  this  hour  shall  have  become  stilled,  and  the  incon- 
siderate heat  of  party  feeling  subsided,  when  men's  minds  shall 
have  become  calmer,  and  reason  again  assert  her  supremacy  over 
them,  I  cannot  but  believe  that  this  decision  will  be  generally  ap- 
proved by  all  the  candid  and  thinking  citizens  of  the  country.  But 
I  take  leave  of  this  question  and  come  to  the  motions  yet  undecided. 
In  the  first  place,  I  am  clearly  of  the  opinion  that  the  attorney 
general  cannot  now  dismiss  this  cause.  If  he  could,  I  think  all 
the  objects  of  the  statute  of  1855  might  be  defeated.  That  statute 
gives  any  citizen  claiming  an  office  which  has  been  usurped,  the 
right  to  file  an  information  in  the  nature  of  quo  zvarranto  upon  his 
own  relation,  without  the  consent  of  the  attorney  general,  and 
prosecute  the  same  to  final  judgment;  provided  he  shall  first  have 
presented  the  information  to  the  attorney  general,  and  he  shall 
refuse  to  file  the  same.  Now,  as  has  been  correctly  said,  this  is  an 
enabling  statute,  passed  for  the  purpose  of  giving  contestants  a 
right  to  determine  their  respective  claims  to  an  office,  when  the 
attornev  general  is  unwilling  to  move  in  the  matter,  making  the 
relator  responsible  for  the  costs  of  the  proceeding.  And  when  the 
attornev  general  upon  request  as  in  this  case,  files  an  information 
substantially  complying  with  this  statute,  and  the  cause  progresses 
as  this  has  done,  I  think  the  attorney  general  cannot  defeat  the 
relator's  rights  by  dismissing  the  proceedings  against  the  relator's 
consent.  The  case  of  entering  a  nolle  prosequi  upon  an  indictment 
is  not  analogous  to  the  one  before  the  court. 

Now  as  to  the  motion  for  a  judgment.  Without  doubt,  judgment 
of  ouster,  can  be  given  against  the  respondent,  he  having  confessed 
all  the  allegations  of  the  information  to  be  true  that  are  well 
pleaded.  Such  is  the  legal  efifcct  of  this  default.  One  of  those 
allegations  is,  that  he  has  usurped  and  intruded  into  the  office  of 
governor,  and  now  holds  it  without  any  lawful  authority.  It  cannot 
be  necessary  to  go  on  and  take  proof  and  establish  this  allegation ; 
if  it  is,  a  party  would  obtain  a  great  advantage  over  his  adversary  by 
refusing  to  plead  and  to  make  u]-*  an  issue ;  T  believe  the  authorities 
generally  sav,  that  (hrmgh  in  fnnn,  this  is  a  criminal  proceeding, 
vet  that  in  character,  it  is  a  civil  one;  consequently  the  same  effect 
is  given  to  a  default  as  in  an  ordinary  civil  action.  This  was  the 
practice  adoptcfl   in  the  recent  contest   ui)on   the  office  of  supreme 


§    2      AGAINST  MUNICIPAL  CORPORATIONS  AND  PUBLIC  OFFICERS.      345 

judge  jn  the  state  of  New  York.     Upon  the  default  of  Cowles. 
judgment  of  ouster  was  rendered   against  him. 

Rut  what  is  the  effect  of  this  default  upon  the  rights  of  the 
relator?  Jn  the  case  just  referred  to — as  I  understand  it — upon 
Cowles'  making  default,  the  court  not  only  gave  judgment  of 
"ouster  against  him,  but  a  judgment  establishing  the  right  of 
Davies.  And  I  am  inclined  to  think  that  this  is  the  general  and 
perhaps  correct  practice.  And  in  this  case,  I  regret  that  it  is  so. 
1  wish  there  was  some  way  in  which  an  issue  could  be  made  up 
and  tried  and  the  relator's  rights  to  the  office  could  be  affirmatively 
established  by  the  most  competent  testimony.  But  I  know  of  none. 
I  have  thought  that  on  account  of  the  importance  of  this  office,  and 
the  very  great  interest  which  seems  to  be  felt  throughout  the 
state  in  reference  to  the  cause,  and  after  the  action  of  the  attorney 
general  and  the  communication  which  he  has  made  to  the  court, 
that  we  might  require  the  relator  to  show  at  least  a  prima  facie  right 
to  the  office  by  exhibiting  proofs  before  us.  I  do  not  say  that  it  is 
necessary  for  him  to  do  so  in  order  to  entitle  him  to  a  judgment 
upon  the  authorities.  According  to  strict  technical  rules  of  prac- 
tice. I  believe  that  the  relator  is  now  entitled  to  judgment  estab- 
lishing his  right ;  and  though  this  is  so,  and  notwithstanding  the 
practice  may  be  anomalous,  yet  for  the  reason  above  assigned.  I 
do  not  think  it  an  undue  caution,  an  unreasonable  exercise  of  the 
discretion  of  the  court,  if  we  have  such  discretion,  to  require  of  the 
relator  some  proof,  which  will  show,  prima  facie,  he  has  a  right 
to  the  office,  before  we  give  a  final  judgment  in  his  favor. 

(In  obedience  to  the  order  of  the  court,  evidence  was  submitted 
showing  the  election  of  relator  to  the  office  of  governor  and  judg- 
ment of  ouster  was  given  against  the  respondent  and  induction  for 
relator. ) 

Opinion  of  Smith,  J.,  and  Whiton,  C.  J.,  omitted. 

This  well  known  and  leading  case  deserves  careful  study.  The  com- 
plete arguments  of  counsel  will  be  found  in  the  original  report  and  are 
well    worth    reading.      See    also,    State    v.    Boyd,    31    Neb.    682. 

On  the  principle  of  the  case  above  it  has  been  held  that  the  writ  will 
lie  against  judges  of  the  court  of  common  pleas.  Commonwealth  v.  Dum- 
liauld,  97  Pa.  St.  293.  But  a  presidential  elector  has  been  declared  not 
a  state  officer,  and  the  writ  refused  against  him.  State  v.  Bowen,  8  S. 
Car.   400. 

The  writ  will  lie  to  test  the  title  of  state. military  as  well  as  civil  officer?. 
Commonwealth  v.   Small,  26   Pa.   St.   31;    State   v.    Brown,   5   R.   I.    i. 


346  PEOPLE    V.    RENSSELAER    &    SARATOGA    RAILROAD    CO.  §    3 

7.     Induction  of  relator  as  part  of  the  remedy. 

IN  RE  STRONG,  PETITIONER. 

1838.     Supreme  Judicial  Court  of  Massachusetts.     37  Mass. 
484.     Supra,  page  158. 


TiLLiNGHAST,  J.,  in  State  v.  Lane,  16  R.  I.  620,  18  Atl.  1035 — 
"As  to  the  claim  made  in  the  pleadings  that  relator  was  elected 
to  the  office  of  superintendent,  we  need  only  say  that  in  this  proceed- 
ing we  can  only  pass  upon  the  question  of  the  defendant's  election, 
as  quo  zvarranto  lies  to  remove  the  illegal  incumbent  of  an  office 
and  not  to  put  the  legal  officer  in  his  place.  Citing,  In  re  Strong, 
Petitioner,  37  Mass.  484. 

See  also,  Bonner  v.  State,  7  Ga.  473,  480;  People  v.  Londoner,  13  Colo. 
303;    State  V.   Meek,   129  Mo.  431. 

In  many  states,  however,  the  remedy  has  been  extended  to  determine 
the  right  of  relator  to  the  office  and  seat  him  if  necessary.  Vrooman  v. 
Michie,  69  Mich.  42;  State  v.  Frantz,  55  Neb.  167;  Palmer  v.  Foley,  45 
How.  Pr.  (N.  Y.)  no;  State  v.  Heinmiller,  38  Oh.  St.  loi ;  State  v.  Pierce, 
35  Wis.  93.  loi ;  Davis  v.  State,  75  Tex.  420,  426;  Henshaw,  Ex  parte,  73 
Cal.  486;  Brown  v.  Goben,  122  Ind.  113;  State  v.  Commissioners,  39  Kan. 
85;  Manahan  v.  Watts,  64  N.  J.  L.  465. 

In  Indiana,  and  perhaps  also  in  Louisiana  and  Mississippi,  if  relator  fails 
to  establish  his  title,  the  proceeding  fails. 


Section  3. — Against  Private  Corporations  and  the  Officers  Thereof. 

1.     To  correct  usurpation  of  franchise. 

I^EOPLE  V.  THE  R1':XSSELAER  &  SARATOGA  RAILROAD 

COMPANY. 

1836.     Supreme  Court  of  Judicature  oi<  New  York.     15  Wend. 

114. 

QuD  Warranto. — The  attorney  general  filed  an  information 
in  the  nature  of  quo  warranto,  against  the  Rensselaer  &  Saratoga 
R.  R.  Co.,  charging  the  company  with  claiming  to  be  a  body 
])olitic  anrl  corporate  in  law,  fact  and  name,  by  the  name  of  the 
kcnsselacr  &  Saratoga  R.  R.  Co..  and  with  claiming  the  liberty, 
privilege  and  franchise  of  jilacing  abutments,  piers  and  other  works 
in  the  bed,  current  :m'l  (b.-innel,  of  the  Hudson  River  at  Troy,  in  the 
county  of  Rensselaer,  and  of  erecting  and  constructing  a  bridge 
upon  such  abutments,  etc.,  over  and  across  the  river  from  the 
eastern    to   the    western    bank   thereof;   averring   the    river   at   the 


§    3       AGAINST     PRIVATE    CORrORATIONS    AND    THEIR    OFFICERS.        2)47 

place  where  the  abutments  were  claimed  to  be  placed  and  bridge 
to  be  built,  to  be  an  arm  of  the  sea  in  which  the  tide  ebbs  and 
flows,  navigable  for  sloops,  schooners  and  other  vessels,  and  to  have 
been  used  and  to  be  still  used,  by  the  citizens  of  this  state  and  of 
the  United  States,  in  carrying  on  trade,  commerce  and  intercourse, 
by  means  of  such  sloops,  etc.,  under  and  in  pursuance  of  the  acts 
of  congress  of  the  United  States,  between  ports  and  places  on  the 
Atlantic  Ocean,  and  towns  and  villages  on  the  banks  of  the  river, 
situate  above  Troy,  to-wit: — the  villages  of  Lansingburgh  and 
Waterford ;  concluding  in  the  usual  form,  by  praying  process,  etc. 

The  defendants  pleaded  that  by  an  act  of  the  legislature  of  this 
state,  passed  Apr.  14,  1882,  they  were  created  a  body  corporate  and 
politic,  in  fact  and  in  name,  by  the  name  of  the  Rensselaer  &  Sara- 
toga Railroad  Company,  for  the  term  of  fifty  years,  for  the  purpose 
of  constructing  a  single  or  double  railroad  or  way  from  some  proper 
point  in  the  city  of  Troy  in  the  county  of  Rensselaer,  passing 
through  the  village  of  Waterford,  in  the  county  of  Saratoga,  to 
the  village  of  I'allston  Spa,  in  the  latter  county ;  and  that  by  virtue 
of  such  act  of  the  legislature,  they  are  a  body  politic  and  corporate, 
in  fact  and  in  name,  entitled  to  use  the  liberties,  privileges  and 
franchises  granted  to  them,  and  for  all  the  time  mentioned  in  the 
information  have  used  the  same,  and  particularly  the  liberty,  privi- 
lege and  franchise,  of  constructing  a  single  or  double  railway, 
from  a  proper  point  in  the  city  of  Troy  in  the  county  of  Rensselaer, 
passing  through  the  village  of  Waterford,  in  the  county  of  Sara- 
toga, to  the  village  Ballston  Spa,  and  as  a  necessary  part  of  such 
railroad  or  ivay,  and  not  otherwise,  have  used  the  liberty,  privi- 
lege or  franchise  of  placing  the  abutments,  &c.  and  laying  string 
pieces  and  other  beams  and  timbers,  upon  such  abutments,  &c.,  and 
of  building  and  constructing  a  bridge  over  and  across  the  river,  from 
the  eastern  bank  thereof  in  the  city  of  Troy,  and  on  the  direct  route 
of  such  railroad,  to  the  western  bank  of  the  river  on  Green  Island,  in 
the  county  of  Albany,  leaving  over  the  main  or  principal  part  of  the 
channel  an  opening  for  a  convenient  and  suitable  drazv,  to  enable  ves- 
sels navigating  the  river  to  pass  and  repass,  and  so  as  to  restore  the 
river  to  its  former  state,  or  in  a  sufficient  manner  not  to  have 
impaired  its  usefulness  as  a  public  navigable  river  and  of  up- 
holding and  maintaining  such  bridge  &c.  To  which  answer  the 
attorney  general  put  in  r.  general  demurrer  and  the  defendants 
joined. 

By  the  court,  Savage,  Ch.  J.  In  support  of  the  first  objection 
taken  on  behalf  of  the  people,  it  is  argued  that  it  is  not  enough 
for  the  defendants  to  aver  in  their  plea  that  by  virtue  of  the  act 
of  1832,  they  are  created  and  constituted  a  body  corporate  and  politic 
in  fact  and  in  name ;  but  that  they  should  aver  a  compliance  with  the 
requiremen'=-s  of  that  act,  and  also  with  the  general  act  relating 
to   corporations,   and   show   a   performance   affirmatively   of   those 


348  PEOPLE  V.   THE  RENSSELAER   &  SARATOGA  RAILROAD  CO.  §    3 

acts,  which  were  necessary  to  authorize  them  to  organize  and 
act  as  a  corporation.  The  case  of  the  King  v.  Amery,  2  T.  R.  515, 
is  cited  as  an  authority  on  this  point,  but  I  am  not  able  to  perceive 
that  the  decision  in  that  case  turned  upon  that  question.  The 
information  was  filed  against  the  defendant  as  an  individual  for  exer- 
cising the  office  of  alderman  of  the  city  of  Chester.  He  pleaded  a 
charter  granted  by  Charles  II,  and  that  he  was  regularly  elected 
alderman  under  that  charter.  The  prosecutor  took  issue  upon 
these  facts;  and  also  put  in  two  special  replications;  i.  That  the 
mayor,  &c.,  were  removed  by  the  king  by  virtue  of  a  power  for 
that  purpose  reserved  in  the  charter;  and  2.  That  the  attorney  gen- 
eral filed  an  information  against  the  corporation  charging  them 
with  usurpation,  and  that  such  proceedings  were  had  and  that  judg- 
ment qiiosqitc  was  entered  by  default,  and  that  a  subsequent  charter 
was  granted  by  James  II,  in  October  1688,  restoring  the  city  of  Ches- 
ter to  its  ancient  privileges,  which  was  accepted  by  the  mayor  ard 
citizens  whereby  the  charter  of  Charles  II  became  void.  To  the  sec- 
ond replication  the  defendant  rejoined,  that  judgment  of  seizure  was 
rendered  against  the  old  corporation,  in  the  reign  of  Charles  II, 
whereby  the  old  corporation  was  dissolved  long  before  the  chan  by 
James  II.  Issue  was  joined  and  on  the  trial  the  jury  found,  among 
other  things,  the  charter  of  Charles  II,  as  in  the  defendant's  plea, 
and  that  the  defendant  was  duly  elected  by  that  charter ;  that  the 
order  of  removal  of  James  II  was  duly  signified  to  the  citizens  and 
inhabitants,  and  that  there  was  no  final  judgment  upon  the  quo  war-^ 
ranto.  A  motion  was  made  to  deliver  the  postea  to  the  defendant, 
that  he  might  enter  judgment  thereon.  The  argument  in  that  case 
contains  much  learning,  on  the  subject  of  proceedings  against  cor- 
porations ;  but  it  is  not  necessary  to  go  at  large  into  it.  It  was  urged 
on  the  part  of  the  prosecution  that  there  are  but  two  kinds  of  pro- 
ceedings against  a  corporation:  i.  When  a  corporation  legally 
created  abuses  any  of  its  franchises,  or  usurps  others  which  do  not 
belong  to  it,  then  the  information  should  be  against  the  corpora- 
tion as  such,  and  in  such  cases  the  judgment  against  it  should  be 
a  judgment  of  seizure;  but  when  a  body  of  men  assume  to  be  a 
corporation,  and  the  information  is  brought  for  usurpation,  it  can- 
not be  brought  against  them  by  their  corporate  name,  but  as  indi- 
viduals ;  and  in  such  case  there  must  be  a  judgment  of  ouster.  On 
the  other  hand,  the  opposite  doctrine  was  maintained,  and  Ashurst, 
justice,  in  giving  the  opinion  of  tlie  court,  says  that  the  information 
called  upon  the  mayor  and  citizens  to  show  by  what  authority  they 
claimed  to  be  a  cori^oration  ;  iion  constat  by  that  information,  that 
tluTc  was  any  corporation  in  Chester.  The  information  imports  the 
contrary,  for  it  charges  them  with  having  usur])ed  the  name,  privi- 
leges and  authority  of  a  corporation,  without  any  legal  right.  He 
says  that  if  any  charter  or  prescription  existed,  it  was  incumbent 
for  the  dcfunrlants  to  have  appeared  and  shown  it ;  and  by  not  doing 


§    3        AGAINST     PRIVATE     CORPORATIONS     AND    THEIR     OFFICERS.        349 

SO  they  admitted  that  there  was  neither  charter  nor  prescription  to 
warrant  such  usurpation.  This  is  the  whole  point  of  the  decision 
in  so  far  as  it  is  appHcable  here ;  and  all  it  proves  is  that  the  informa- 
tion is  regular  in  proceeding  against  the  defendants  by  their  corpo- 
rate name ;  but  it  does  not  prove  that  the  defendants  should  do  more 
in  their  plea  than  to  claim  title  vmder  their  charter.  It  is  not  ad- 
judged that  the  defendants  should  aver  any  acts  of  theirs  under  the 
charter  to  effect  their  incorporation. 

The  question  as  to  the  form  of  a  plea  in  quo  zvarranto  does  not 
appear  to  have  been  discussed  in  the  cases  in  this  court.  In  the 
People  V.  Niagara  Bank,  6  Cowen,  196,  and  the  two  following 
cases,  informations  were  filed  against  corporations ;  and  the  alle- 
gations were  made  that  without  any  warrant,  grant  or  charter,  they 
used  certain  privileges,  and  franchises,  towit,  that  of  being  a  bod}- 
politic  and  corporate  in  law,  fact  and  name,  etc.  To  this  charge 
the  defendants  answer,  that  by  a  certain  act  of  the  legislature,  (set- 
ting out  the  title  of  their  act  of  incorporation),  they  were  ordained, 
constituted  and  declared  to  be  a  body  politic  and  corporate,  in  fact 
and  in  name ;  but  they  do  not  state  the  acts  which  were  necessary 
to  be  done ;  such  as  the  opening  of  books  and  subscriptions  by  stock- 
holders ;  the  subscription  by  commissioners ;  the  apportionment  of 
stock  and  the  election  of  directors.  No  exception  was  taken  to  the 
plea  on  this  ground,  and  therefore  the  approbation  by  the  court  of 
this  general  mode  of  pleading  ought  not,  perhaps,  to  be  considered. 
a  positive  authority  in  favor  of  it.  Neither  do  the  cases  brought  by 
corporations  upon  contracts  prove  much  on  this  point.  In  the  case 
of  the  Rank  of  Auburn  v.  Aiken,  18  Johns.  R.  137,  the  defendants 
had  pleaded  nv.l  fid  corporation,  to  which  the  plaintiffs  replied  that 
they  were  a  corporation.  The  court  said  the  replication  was  bad ; 
the  plaintiff  should  have  shewn  specially  how  they  were  a  corpora- 
tion. Of  this  case  it  may  be  said,  that  the  decision  founded  on  the 
authority  of  i  Kidd,  284,  does  not  give  any  precise  rule  farther  than 
an  intimation  that  there  should  have  been  an  averment  of  the  per- 
formance of  those  acts  which  were  to  be  done  before  they  could  be 
a  corporation.  Wood  v.  Jefferson  County  Rank.  9  Cowen  194,  such 
a  replication  was  put  into  a  plea  of  no  corporation,  and  more  was 
averred  than  was  necessary.  It  was  held  that  the  corporation  was 
not  bound  to  prove  the  unnecessary  averments.  It  was  there  inti- 
mated that  upon  the  plea  of  the  general  issue  it  was  necessary  to 
prove  that  everything  had  been  done  which  was  necessary  to  be 
done  before  the  incorporation  became  complete ;  but.  subsequentlv 
in  the  Utica  Insurance  Company  v.  Tillman,  i  Wendell  555,  it  zvas 
held  that  a  corporation  plaintiffs  need  only  prove  their  charter  and 
acts  of  user  under  it;  and  such  is  the  rule  nozv  in  this  court.  If  a 
corporation,  when  proceeded  against  is  not  bound  to  prove  more 
than  when  they  sue  as  plaintiffs,  it  would  not  now  be  necessarv  to 
prove  more  than  is  averred  in  the  plea  pleaded  in  this  case  ;  and  from 


350  PEOPLE  V.   THE  RENSSELAER  &  SARATOGA  RAILROAD  CO.  §    3 

the  course  of  pleading  adopted  and  approved  of  by  the  court,  m  the 
case  of  the  People  v.  The  Niagara  Bank,  and  the  other  cases  in  6 
Cowen,  it  would  seem  that  the  plea  is  sufficient  and  that  it  is  compe- 
tent for  the  attorney  general  to  reply  any  matter  which  should  show 
a  failure  on  the  part  of  the  corporation  to  comply  with  the  require- 
ments of  the  act  creating  them.  On  this  point,  however,  it  does 
not  seem  necessary  to  give  any  definite  opinion,  because  the  revised 
statutes  seem  to  have  regulated  the  proceedings  in  such  cases,  and 
to  have  adopted  the  suggestions  of  the  counsel  for  the  crown,  in 
the  case  of  the  King  v.  Amery,  as  the  correct  mode  of  proceeding. 
Those  statutes  provide  that  an  information  in  the  nature  of  a  quo 
zvarranto  may  be  filed  against  individuals  in  several  cases ;  one  of 
which  is,  "When  any  association  or  number  of  persons  shall  act 
within  this  state,  as  a  corporation  without  being  legally  incorpo- 
rated." 2  R.  S.  581,  §  28,  sub.  3.  And  a  similar  information  may 
be  filed  against  any  corporate  body,  in  several  cases,  when  such  cor- 
poration shall  ofifend  against  their  charter,  or  any  act  of  the  legis- 
lature affecting  it ;  or  shall  have  done  or  omitted  any  act  which 
shall  operate  as  a  forfeiture  by  misuser,  or  nonuser,  or  a  surrender ; 
or  when  it  shall  exercise  any  franchise  not  conferred  by  law.  2  R. 
S.  583,  §  39.  By  §§48  and  49,  p.  585,  the  nature  of  the  judgment 
to  be  rendered  is  different  in  the  two  different  modes  of  proceeding. 
Whenever  individuals  or  a  corporation  shall  be  found  guilty,  either 
of  usurping  or  intruding  into,  any  office  or  franchise,  or  of  unlaw- 
fully holding,  judgment  of  ouster  shall  be  rendered,  and  a  fine  may 
be  imposed ;  but  where  the  proceeding  is  againt  a  corporation, 
and  a  conviction  ensues  for  misuser,  nonuser  or  a  surrender,  judg- 
ment of  ouster  and  a  dissolution  shall  be  rendered,  which  is  equiva- 
lent to  judgment  of  seizure  at  common  law.  //,  therefore,  the  in- 
formation in  this  case  had  for  its  object,  to  oust  the  defendants 
from  acting  as  a  corporation,  and  to  test  the  fact  of  their  incorpora- 
tion, it  should  have  been  tiled  against  individuals;  if  the  object  zvas 
to  effect  the  dissolution  of  a  corporation,  which  had  had  an  actual 
existence,  or  to  oust  the  corporation  of  some  franchise  zvhich  it 
lawfully  exercised,  then  the  information  is  correctly  filed  against 
the  corporation.  The  distinction  is  well  exemplified  by  Sir  Robert 
Sawyer,  in  the  King  v.  The  City  of  Kondon,  cited  in  2  T.  R.  522. 
lie  says  the  rule  is  this:  zvhen  it  clearly  appears  to  the  court  that  a 
liberty  is  usurped,  by  wrong,  and  upon  no  title,  judgment  only  of 
ouster,  shall  be  entered.  But  zvhen  it  appears  that  a  liberty  has  been 
granted,  hut  has  been  misused,  judgment  of  seizure  into  the  king's 
hands  shall  be  given.  The  reason  is  given  ;  that  which  came  from 
the  king  is  rieturned  there  by  seizure ;  but  that  which  never  came 
from  him,  but  was  usurped,  shall  be  dcclan-d  null  and  void.  Judg- 
ment of  ouster  is  rendered  against  indiz'iduals,  for  unlazvfully  as- 
suming to  be  a  corporation.    It  is  rendered  against  corporations  for 


§    3       AGAIXSl-     rKIVATK     COKl'ORATIONS     AND     TllEIK    Ol-FICEUS.        35I 

exercising  a  franchise  not  axithorizcd  by  their  charter.  In  such  a 
case,  the  corporation  is  ousted  of  such  franchise,  but  not  of  being 
a  corporation.  Judgment  of  seizure  is  given  against  a  corporation 
for  a  forfeiture  of  its  corporate  privileges.  The  information  in  this 
case  is  therefore  not  the  proper  proceeding  to  call  in  question  the 
corporate  existence  of  the  defendants ;  but  in  so  far  as  it  seeks  to 
oust  the  defendants  from  the  exercise  of  any  franchise  not  granted 
to  them,  it  is  appropriate.  \\'hen,  therefore,  an  information  is  filed 
under  the  revised  statutes  against  a  corporation  by  its  corporate 
name,  the  existence  of  the  corporation  is  admitted ;  or  rather,  that  it 
once  had  legal  existence.  This  brings  me  to  inquire  whether  the 
defendants  have  the  right  to  build  a  bridge  across  the  Hudson  River 
at  Troy,  as  a  part  of  their  railroad.     *     *     * 

(The  court  found  that  defendants  were  lawfully  organized  and 
possessed  the  rights  claimed  and  gave  judgment  in  their  favor.) 

Judgment  for  defendants  on  demurrer. 


GREEN  ET  AL.  V.  PEOPLE  ex  rel.  PAVEY,  x\uditor. 
1894.     Supreme  Court  of  Illinois.     150  111.  513,  37  N.  E.  842. 

(Infromatiox  in  the  nature  of  quo  zvarranto.  Judgment  of 
ouster.) 

ScHOLFiELD,  J.  The  question  here  is  whether,  under  the  facts 
as  presented  by  this  record,  "any  associations  or  numbers  of  persons 
are  acting  within  this  state  as  a  corporation  without  legally  being 
incorporated."  If  they  are,  the  judgment  below  is  authorized  by 
our  statute  entitled  "quo  warranto"  (chapter  112,  Rev.  Stats.,  p. 
787)  and  must  be  affirmed;  otherwise  it  must  be  reversed. 

We  think  it  clear  that  in  two  respects  at  least  these  respondents 
are  acting  as  a  corporation  (and  it  is  not  pretended  that  they  are 
actually  incorporated)  namely:  (i)  In  professedly  limiting  their 
liability  to  the  amount  of  money  contributed  by  each;  (2)  in  as- 
suming to  give  perpetuity  to  the  business  by  making  membership 
certificates  transferable  by  the  assignment  of  a  member  or  his  per- 
sonal representatives.  It  may  be,  as  contended  by  counsel,  that  indi- 
viduals may  insure  property,  against  the  loss  by  fire.  They  cannot 
limit  their  liability  to  any  given  amount  of  capital  they  choose  to 
set  apart  for  that  purpose,  nor  can  they  perpetuate  the  business, 
without  change  of  capital,  beyond  their  cJwn  lives  indefinitely.  These 
things  can  only  be  done  by  a  corporation.  Ang-.  &  A.  Cor.  (9th  ed.) 
§  41 ;  2  Kent  Comm.  (8th  ed.)  296,  268;  Pars.  Part.  (2d.  Am.  ed.) 
1544;  Gow,  Part,  (2d.  Am.  ed.)  17.  The  fact  that  these  respondents 
may  be  legally  held  individually  liable  upon  any  policies  they  mav 


352  GREEN  ET  AL.  V.   PEOPLE  EX  REL.  PAVEY,  AUDITOR.  §    3 

have  issued  does  not  relieve  them  of  the  charge  of  having  acted  as 
a  corporation.  They  are,  if  individually  liable,  only  liable  because 
they  have  no  statutory  authority  to  do  what  they  have  assumed  to 
do,  because,  instead  of  being  a  corporation,  they  have  usurped  the 
powers  of  a  corporation.  Were  we  to  hold  that  these  respondents 
can  do  without  any  legislative  authority  what  they  here  assume  to 
do,  our  insurance  laws  ought  to  be  repealed ;  for  individuals  then, 
by  organizing  in  this  manner,  could  escape  both  individual  and  cor- 
porate liability  beyond  the  amount  of  assets  they  might  choose  to 
place  in  the  hands  of  their  trustee  as  the  basis  of  their  liability.  No 
public  officer  could  investigate  whether  the  amount  is  in  fact  paid 
in,  how  it  is  invested  or  how  secured,  and  the  public  would  thus 
have  practically  no  protection,  against  dishonest  companies.  These 
respondents,  if  they  will  carry  on  the  business  of  insurance,  must 
either  openly  act  upon  their  responsibility  as  individuals,  or  they 
must  become  incorporated,  and  subject  themselves  to  the  laws  gov- 
erning such  corporations.     The  judgment  is  affirmed. 


In  this  country  few  cases  seem  to  have  arisen  wherein  an  information 
has  been  filed  against  individuals  charging  them  with  usurping  the  fran- 
chise of  being  a  private  corporation.  Such  informations  in  the  case  of 
public  corporations  have  not  been  unusual,  especially  in  England ;  but  in 
this  country,  the  ease  with  which  a  charter  for  a  private  corporation  might 
be  procured,  both  by  way  of  special  act,  as  well  as  under  general  statutes, 
has  doubtless  been  the  reason  why  so  few  cases  may  be  found  where  a 
direct  attempt  has  been  made  to  usurp  the  primary  franchise  of  being  a 
corporation.  With  the  extensive  increase  in  the  number  of  private  cor- 
porations in  this  country,  has  also  come  a  corresponding  increase  of  cases 
wherein  secondary  franchises  have  been  usurped  or  where  under  the  cloak 
of  its  charter  the  company  has  been  guilty  of  acts  of  misfeasance  or  mal- 
feasance constituting  a  ground  for  forfeiture.  The  consequence  has  been 
an  overwhelmingly  large  number  of  cases  in  quo  warranto  seeking  judg- 
ment of  ouster  for  the  usurpation  of  such  secondary  franchise  or  forfeiture 
for  abuse  or  misuse  of  charter  privileges. 

See  National  Docks  R.  Co.  v.  Central  R.  Co.,  32  N.  J.  Eq.  755;  People 
v.  Clark,  70  N.  Y.  518;  State  v.  Pittsburgh,  etc.,  R.  Co.,  50  Oh.  St.  239; 
People  v.  Erie  R.  Co.,  36  How.  Pr.  (N.  Y.)  129;  Reed  v.  Cumberland,  etc., 
Co.,  65  Me.  132;  State  v.  Hannibal,  etc.,  Co.,  37  Mo.  App.  496;  People 
V.  Trustees,  etc..  5  Wend.  (N.  Y.)  211;  State  v.  Real  Estate  Bank,  5  Ark. 
595;  Albert  v.  State,  65  Ind.  413;  State  v.  Pipher,  28  Kan.  127;  People  v. 
Stanford,  77  Cal.  360,  372;  Smith  v.  State,  140  Ind.  343;  State  v.  American 
Med.  Col.,  59  Mo.  App.  264;  State  v.  Bull.  t6  Conn.  179,  190;  State  v. 
Madison  St.  R.  Co.,  72  Wis.  612;  Parish  of  Bcllport  v.  Tooker,  29  Barb. 
(N.  Y.)  256;  People  v.  Kingston,  etc.,  Co.,  23  Wend.  (N.  Y.)  193;  Ward 
V.  Farwcll,  97  111.  593;  Attorney-General  v.  Perkins,  73  Mich.  303;  State 
V.   Uridil,  37   Neb.   371. 


^    -  AGAINST     PRIVATE    CORPORATIONS    AND    THEIR    OFFICERS.       353 

PEOPLE  EX  REL.  ATTORNEY  GENERAL  v.  UTICA  INSUR- 
ANCE CO. 

1818.     Supreme  Court  of  New  York.     15  Johnson  358. 

(Information  in  the  nature  of  quo  zvarranto  filed  by  the  attor- 
ney general  and  charging  that  respondent  company  had  usurped 
and  was  usurping  and  intruding  into  and  using  without  warrant, 
charter  or  grant,  "the  following  liberties,  privileges  and  franchises, 
to-wit,  that  of  becoming  proprietors  of  a  bank  or  fund  for  the  pur- 
pose of  issuing  notes,  receiving  deposits,  making  discounts,  and 
transacting  other  business  which  incorporated  banks  may  and  do 
transact  by  virtue  of  their  respective  acts  of  incorporation,  and  also 
that  of  actually  issuing  notes,  receiving  deposits,  making  discounts, 
and  carrying  on  banking  operations  and  other  moneyed  transac- 
tions which  are  usually  performed  by  incorporated  banks,  and  which 
they  alone  have  a  right  to  do,  of  all  which  liberties,  privileges  and 
franchises  aforesaid,  the  said  Utica  Insurance  Company,  during  all 
the  time  aforesaid,  have  usurped,  and  still  do  usurp  upon  the  said 
people,  to  their  great  damage  and  prejudice;  whereupon  the  said 
attorney  of  the  said  people  prays  advice  of  the  said  court  in  the 
premises,  and  due  process  of  law  against  the  said  Utica  Insurance 
Company,  in  this  behalf  to  be  made,  to  answer  to  the  said  people, 
by  what  warrant  they  claim  to  have,  use  and  enjoy  the  liberties, 
privileges  and  franchises  aforesaid."  The  insurance  company  filed 
its  plea  and  answer  justifying  its  user  of  the  aforesaid  franchises. 
Relator  demurred.) 

Harrison  and  T.  A.  Emmett,  of  counsel  for  respondent,  main- 
tained: I.  The  acts  charged  against  the  defendants  are  not  the  ex- 
ercise of  franchises ;  and  therefore  an  information  in  the  nature  of 
a  writ  of  quo  warranto  will  not  lie  against  them.  Franchise  or  not, 
is  a  question  of  law  and  is  not  admitted  by  the  demurrer.  A  fran- 
chise is  a  royal  privilege,  or  branch  of  the  royal  prerogative,  sub- 
sisting in  the  hands  of  a  subject,  by  grant  from  the  crown.  A  writ 
of  quo  warranto  is  the  king's  writ  of  right,  and  issues  where  a  fran- 
chise is  usurped,  or  forfeited  by  misuser.  (2  Bl.  Com.  37 ;  Finch's 
Law,  38,  164,  166;  3  Cruise's  Digest,  278,  tit.  27,  sect,  i.)  The 
word  "franchises"  is  often  used  in  common  parlance,  in  a  very 
broad  sense,  for  all  liberties ;  but  its  legal  or  technical  signification 
is  more  confined.  A  franchise  was,  always,  in  England,  a  gem  in 
the  royal  diadem.  It  was  inherent  in  the  crown  from  the  first  in- 
stitution of  monarchy.  But  the  right  of  banking  was  never  a  fran- 
chise, or  branch  of  the  royal  prerogative.  The  Bank  of  England 
was  established  in  1694,  pursuant  to  an  act  of  parliament  (5  W.  & 
M.  cap.  20)  which  authorizes  their  majesties,  William  and  Man% 
to  grant  a  commission  to  take  subscriptions  from  individuals,  and 


354  PEOPLE  EX  REL.  ATTORNEY  GENERAL  V.   UTICA  INS.   CO.  §    3 

to  incorporate  them.  Had  the  power  of  banking  been  a  royal  fran- 
chise, this  special  authority  from  parliament  would  not  have  been 
necessary. 

In  1697  (8  &  9  W.  &  M.,  ch.  20,  s.  28)  it  was  enacted  that,  during 
the  continuance  of  the  Bank  of  England,  no  other  bank  or  any  cor- 
poration, society,  fellowship,  company  or  institution,  in  the  nature 
of  a  bank,  should  be  erected  or  established,  etc.,  by  act  of  parliament. 
This  still  left  individuals  and  ancient  corporations  free  to  bank.  But 
in  1708  (7  Anne,  ch.  7,  s.  61)  it  was  enacted,  that  during  the  con- 
tinuance of  the  Bank  of  England,  it  should  not  be  lawful  for  any 
corporation  erected,  or  to  be  erected  (other  than  the  said  bank),  or 
for  any  other  persons  in  partnership,  exceeding  the  number  of  six 
persons,  to  take  up  money  on  their  bills  or  notes,  etc.  It  is  clear 
then  that  if  parliament  had  not  interfered,  all  corporations  might 
lawfully  have  carried  on  banking  business ;  the  act  of  7  Anne  re- 
straining them,  does  not  declare  it  unlawful,  but  merely  prohibits 
the  exercise  of  the  power,  while  the  Bank  of  England  continued.  It 
is  manifest,  therefore,  that  in  England,  banking  was  not  considered 
as  a  royal  franchise;  and  private  banking  is  now  carried  on  in  that 
country,  by  associations  of  partnership  of  not  more  than  six  per- 
sons. 

If  we  look  to  the  acts  of  our  legislature,  we  shall  find  that  they 
speak  the  same  doctrine.  Numerous  acts  of  incorporation  have 
been  passed  since  the  restraining  act  of  April  11,  1804,  each  of 
which  contains  a  special  clause  to  restrain  the  corporation  from 
banking.  (Here  the  counsel  enumerated  more  than  fifty  acts  passed 
since  1804,  which  he  said  contained  a  special  restraining  clause.) 
It  is  remarkable,  also,  that  in  the  same  session  in  which  the  restrain- 
ing act  was  passed,  there  was  an  act  of  incorporation  passed,  con' 
taining  a  special  prohibition  against  banking.  What  stronger  evi  ■ 
dcnce  can  be  asked  of  the  sense  of  the  legislature,  that  the  right  o.* 
banking  is  not  a  franchise,  but  exists  at  large  in  every  citizen,  amii 
may  be  freely  exercised  unless  expressly  restrained  by  the  legisla- 
ture? 

The  right  was  open  to  every  individual  and  the  defendants,  being 
created  a  corporation,  have  as  its  inseparable  incidents,  a  perpetual 
succession,  a  capacity  to  sue  and  be  sued,  a  right  to  purchase  and 
hold  land,  to  have  a  common  seal,  and  to  make  by  laws,  etc.  (Kyd 
on  Cor.  69,  70.)  They  might,  therefore,  as  well  as  any  individual, 
carry  on  banking  business,  unless  expressly  prohibited.  If  then, 
this  is  not  a  royal  franchise,  no  information  in  the  nature  of  a  writ 
of  quo  zvarrmiio  lies;  for  these  informations  have  been  substituted 
in  place  of  that  ancient  prerogative  writ.  (2  Co.  Inst.  496,  I  Bulst. 
S$^  $(^^'^  T^cx  V.  Marsdcn,  3  P.urr.  1817,  per  Wilmot,  J.)  Not  a  case 
can  be  found  in  which  a  writ  of  quo  warranto  has  been  brought,  or 
an  information  in  the  nature  of  one  filed,  for  exercising  the  right  of 


§    3        AGAINST     PRIVATE    CORPORATIONS    AND    THEIR     OFFICERS.        355 

banking.  In  the  King  v.  Shepherd  (4  Term.  Rep.  381),  Lord 
Kenyan  said,  that  the  old  writ  of  quo  zvarranto  lay  only  where  there 
was  an  usurpation  on  the  rights  and  prerogatives  of  the  crown ;  and 
that  an  information  in  the  nature  of  a  quo  warranto  could  only  be 
granted  in  such  cases.  So,  in  the  case  of  the  King  v.  The  Corpora- 
tion of  Bedford  Level  (6  East.  359),  Lawrence,  ].,  says,  "it  has 
been  always  understood  that  a  quo  ivarranto  only  lay  for  encroach- 
ments on  franchises  created  by  the  crown." 

Again,  for  the  exercise  of  any  power  incidental  to  a  corporation, 
or  an  association,  a  writ  of  quo  ivarranto  does  not  lie.  As  well 
might  it  lie  to  ascertain  by  what  authority  individuals  assembled 
for  political  purposes.  A  person  entitled  to  a  manor,  need  not  show 
by  what  title  he  holds  a  court  baron,  for  that  is  incident  to  a  manor. 
(Rex  V.  Stanton,  Cro.  Jac.  259,  260.) 

But  it  is  said  that  the  restraining  act  has  made  banking  a  fran- 
chise ;  and  that  no  person  can  now  exercise  the  right,  without  show- 
ing a  legislative  grant.  Suppose,  in  England,  after  the  restraining 
act,  more  than  six  persons  had  associated  as  bankers,  would  an  in- 
formation in  the  nature  of  quo  zvarranto,  have  been  filed  against 
them  ?  No  ;  their  acts  would  have  been  illegal  and  void.  How  have 
the  legislature  assumed  this  prerogative  and  franchise?  How  have 
they  taken  to  themselves  what  was  before  the  common  right  of 
every  citizen?  By  prohibiting  all  unincorporated  banking  associa- 
tions. Is  everything  which  is  made  the  subject  of  exclusive  right 
or  grant  a  franchise,  and  to  be  tried  by  a  quo  zvarranto?  Ferries, 
running  of  stages,  and  steamboats  are  made  exclusive  rights ;  yet  it 
has  never  been  supposed  that  information  in  the  nature  of  quo  zvar- 
ranto would  lie  in  the  case  of  an  invasion  of  these  rights. 

Again ;  the  restraining  act  is  not  in  the  conjunctive ;  it  declares 
that  "no  person  unauthorized  by  law  shall  subscribe  to,  or  become 
a  member  of,  any  association,  institution  or  company,  or  proprietor 
of  any  bank  or  fund  for  the  purpose  of  issuing  notes,  receiving  de- 
posits, making  discounts,  or  transacting  any  other  business  which 
incorporated  banks  may,  or  do,  transact,  by  virtue  of  their  respective 
acts  of  incorporation."  By  this  act  the  legislature  assume  the 
rights  specified  ;  they  do  not  resume  a  franchise.  If  the  legislature 
can  thus  assume  all  rights  common  to  the  citizens,  there  is  no  com- 
mercial business  whatever  that  they  cannot  proliibit ;  and  so  the 
chamber  of  commerce  apprehended.  And  on  their  petition,  the 
sections  to  the  act,  27  sess.,  ch.  no,  s.  8  &  9,  were  passed  in  ex- 
planation of  the  restraining  act.  It  was,  in  effect,  an  act  to  restrain 
commercial  partnerships  or  companies ;  but  the  explanatory  sections 
do  virtually  repeal  the  restraining  act. 

It  may  be  said  that  banking  is  quasi  a  franchise  or  branch  of 
prerogative.  But  when  every  individual  has  a  right  to  bank,  how 
can  it  be  in  any  degree  or  shape  a  franchise?    The  act  merely  re- 


'  ^=)^  PEOPLE  EX   REL.  ATTORNEY  GENERAL  V.   UTICA  INS.   CO.  §    3 

Strains  associations.  Every  citizen  or  inhabitant  may,  if  he  pleases, 
be  a  banker.  Can  it  be  possible  that  the  legislature  may  assume  to 
itself  the  rights  of  every  citizen?  Such  is  not  the  law  of  England. 
If  it  is  the  law  of  any  country,  it  is  the  law  of  Turkey,  where,  alone, 
it  can  be  imagined  that  the  common  rights  of  man  should  be  doled 
out  for  the  purposes  of  gain.  The  mind  revolts  at  the  idea  of  a 
legislature  bargaining  out  the  common  rights  of  the  citizen  for 
money.  If  the  exercise  of  the  right  be  injurious,  prohibit  it.  What 
is  granted  should  be  given  freely.  A  contrary  doctrine  would  be  at- 
tended with  the  most  pernicious  effects.     *     *     * 

Van  Buren  in  reply.  *  *  *  The  general  demurrer  admits 
that  the  power  exercised  by  the  defendants  is  a  franchise ;  and  it 
follows  that  this  is  the  proper  remedy.  But  is  it  not  a  franchise? 
The  chancellor  had  no  doubt  on  the  question.  He  says  that  "the 
right  of  banking  was,  formerly  a  common  law  right  belonging  to 
individuals,  and  to  be  exercised  at  their  pleasure.  But  the  legisla- 
ture thought  proper,  by  the  restraining  act  of  1804,  which  has  since 
been  re-enacted,  to  take  away  the  right  from  all  persons  not  spe- 
cially authorized  by  law.  Banking  has  now  become  a  franchise  de- 
rived from  the  grant  of  the  legislature,  and  subsisting  in  those 
only  who  can  produce  the  grant ;  if  exercised  by  other  persons,  it 
is  the  usurpation  of  a  privilege  for  which  a  competent  remedy  can 
be  had  by  the  public  prosecutor  in  the  Supreme  Court."  This  ought 
perhaps  to  be  a  sufficient  authority  on  this  question.  But  to  pursue 
it  further :  A  franchise  is  a  liberty  or  privilege.  There  is  a  dis- 
tinction between  royal  and  common  franchises ;  between  those  of  the 
sovereign  and  those  of  the  people,  as  the  right  of  trial  by  jury. 
When  the  colony  became  a  sovereign  and  independent  state,  the 
people  succeeded  to  all  the  rights  and  privileges  of  the  English  sub- 
jects, and  more;  they  succeeded  to  all  the  rights  and  privileges  of 
the  crown  or  sovereign.  The  legislature  have,  accordingly,  from 
time  to  time,  granted  various  exclusive  liberties  and  privileges,  or 
franchises,  to  citizens.  By  the  restraining  act  of  the  nth  of  April, 
1804,  the  legislature  did  take  to  itself  the  right  or  liberty  of  banking. 
What  was  before  common  to  all,  ceased  to  be  so,  and  became  a 
franchise  or  privilege  in  the  government,  not  to  be  exercised  by 
citizens,  unless  by  grant.  Whether  this  was  a  franchise  in  Eng- 
land or  not,  it  is  made  a  franchise  here ;  and  the  legislature  were 
competent  to  make  it  so.  It  is  true,  that  private  individuals  may 
bank;  1)ut  the  defendants  are  an  association  carrying  on  banking 
business,  in  violation  of  the  act  of  April  11,  1804,  passed  expressly 
to  y)revent  any  unauthorized  or  unincorporated  association  from 
banking.  Being  a  privilege  then,  which  tlie  defendants  could  not 
Inwfviliy  exercise,  without  a  grant  from  the  legislature,  it  comes 
within  the  very  definition  which  has  been  given  (if  a  franchise.  We 
could  not  proceed  by  indictment,  for  the  act  gives  a  penalty,  and 


§    3        AGAINST     PRIVATE     CORPORATIONS    AND    THEIR    OFFICERS.        357 

not  to  the  people  but  to  the  informer.     If  this  remedy  does  not  lie, 

there  is  no  remedy,  civil  or  criminal.     It  is,  at  least,  a  liberty,  in  the 

nature  of  a  franchise ;  and  this  is  the  only  and  proper  remedy.     *     * 
*     *     * 

(Opinion  of  Thompson^  Ch.  J.,  omitted,) 

Spencer,  J.  Two  questions  have  been  brought  forward  in  the 
argument : — 

1st.  Whether  an  information  in  the  nature  of  quo  zvarranto  will 
he  in  this  case. 

2nd.  Whether  the  defendants  have  authority  under  the  act  in- 
corporating the  Utica  Insurance  Company,  to  carry  on  banking 
operations  in  the  manner  set  forth  in  their  plea. 

(Only  so  much  of  the  opinion  as  relates  to  the  first  question  and 
the  meaning  of  the  term  franchise,  is  here  given.) 

The  statute  (i  N.  R.  L.  io8)  gives  this  writ  against  any 
person  who  shall  usurp,  intrude  into,  or  unlawfully  hold  and  exe- 
cute, any  office  or  franchise,  within  this  state ;  and  if  the  right  set  up 
by  the  defendants  is  a  franchise,  and  the  act  under  which  they  claim 
to  exercise  it  does  not  confer  it,  then  the  defendants  are  subject  to 
this  prosecution. 

A  franchise  is  a  species  of  incorporated  hereditamient ;  it  is  de- 
fined by  Finch  (164)  to  be  a  royal  privilege  or  branch  of  the  king's 
prerogative  subsisting  in  the  hands  of  a  subject;  and  he  says  that 
franchises  being  derived  from  the  crown,  they  must  arise  from  the 
king's  grant,  or,  in  some  cases,  may  be  held  by  prescription,  which 
presupposes  a  grant ;  that  the  kinds  are  various  and  most  infinite, 
and  they  may  be  vested  in  natural  persons  or  bodies  politic. 

All  the  elementary  writers  agree  in  adopting  Finch's  definition  of 
a  franchise,  that  it  is  a  royal  privilege,  or  branch  of  the  king's  pre- 
rogative, subsisting  in  the  hands  of  a  subject. 

An  information,  in  the  nature  of  a  writ  of  quo  warranto,  is  a  sub- 
stitute for  an  ancient  writ,  which  has  fallen  into  disuse ;  and  the  in- 
formation which  has  superseded  the  old  writ,  is  defined  to  be  a 
criminal  method  of  prosecution,  as  well  to  punish  the  usurper  by  a 
fine  for  the  usurpation  of  the  franchise,  as  to  oust  him,  and  seize  it 
for  the  crown.  It  has,  for  a  long  time,  been  applied  to  the  mere 
purpose  of  trying  the  civil  right,  seizing  the  franchise,  or  ousting 
the  wrongful  possessor,  the  fine  being  merely  nominal.  (2  Inst. 
281,  p.  112;  3  Burr.  1817;  4  Term.  Rep.  381;  i  Bulst.  55.) 

If  there  are  certain  immunities  and  privileges  in  which  the  public 
have  an  interest,  as  contradistinguished  from  private  rights,  and 
which  cannot  be  exercised  without  authority  derived  from  the 
sovereign  power,  it  would  seem  to  me  that  such  immunities  and 
privileges  must  be  franchises ;  and  the  act  for  rendering  the  pro- 
ceedings upon  writs  of  mandamus,  and  informations  in  the  nature 
of  a  quo  warranto,  more  speedy  and  effectual,  presupposes  that  they 


2S^  PEOPLE  EX   REL.   ATTOKXEY  GENERAL  V.   UTICA  INS.   CO.  §    3 

are  franchises,  other  than  oflices,  which  may  be  usurped  and  in- 
truded into.  If,  in  England,  a  privilege  in  the  hands  of  a  subject, 
which  the  king  alone  can  grant,  would  be  a  franchise  wuth  us.  a 
privilege  or  an  immunity  of  a  public  nature,  which  cannot  legally 
be  exercised  without  legislative  grant,  would  be  a  franchise.  The 
act  commonly  called  the  restraining  law  (sess.  27,  ch.  114) 
enacts,  that  no  person,  unauthorized  by  law,  shall  subscribe  to,  or 
becom.e  a  member  of  any  association,  or  proprietor  of  any  bank,  or 
fund,  for  the  purpose  of  issuing  notes,  receiving  deposits,  making 
discounts,  or  transacting  any  other  business  which  incorporated 
banks  do,  or  may  transact,  by  virtue  of  their  respective  acts  of  in- 
corporation. 

Taking  it  for  granted  for  present,  for  the  purpose  of  considering 
whether  the  remedy  adopted  is  appropriate,  that  the  defendants 
have  exercised  the  right  of  banking,  without  authority,  and  against 
the  provisions  of  the  restraining  act,  they  have  usurped  a  right 
which  the  legislature  have  enacted  should  only  be  ex- 
ercised and  enjoyed  by  authority  derived  from  them.  The  right  of 
banking,  since  the  restraining  act,  is  a  privilege  or  immunity  sub- 
sisting in  the  hands  of  citizens,  by  grant  of  the  legislature.  The  ex- 
ercise of  the  right  of  banking,  then,  with  us,  is  the  assertion  of  a 
grant  from  the  legislature  to  exercise  that  privilege,  and  conse- 
quently it  is  the  usurpation  of  a  franchise,  unless  it  can  be  shown 
that  it  is  a  privilege  granted  by  the  legislature.  An  information  in 
the  nature  of  a  writ  of  quo  zvarranto,  need  not  show  a  title  in  the 
people  to  have  the  particular  franchise  exercised,  hut  calls  on  the 
intruder  to  shozv  by  what  authority  he  claims  it;  and  if  the  title  set 
up  be  incomplete,  the  people  arc  entitled  to  judgment.  (2  K3^d  on 
Cor,  399;  4  Burr.  2146-7.) 

This  position  is  illustrated  by  the  nature  and  form  of  the  infor- 
mation ;  the  title  of  the  king  is  never  set  forth ;  but  after  stating  the 
franchise  usurped,  the  defendant  is  called  upon  to  show  his  warrant 
for  exercising  it. 

This  consideration  answers  the  argument  urged  by  the  defend- 
ant's counsel,  that  banking  was  not  a  royal  franchise  in  England, 
and  that  it  is  not  a  franchise  here  which  the  people  in  their  political 
cai)acity  can  enjoy ;  for  if  their  title  to  enjoy  it  need  not  be  set  out 
in  the  information,  it  is  not  necessary  that  it  should  exist  in  them 
at  all.  In  the  case  of  the  King  v.  Nicholson  et  al.  (i  Str.  303).  it 
appeared  that  by  a  private  act  of  parliament  for  enlarging  and  regu- 
lating the  port  of  Whitehaven,  several  persons  were  appointed  trus- 
tees, and  a  power  was  given  to  them  to  elect  others  upon  vacancies 
by  death  or  otherwise.  The  defendants  took  upon  them  to  act  as 
trustees  without  such  an  election;  and  upon  motion  for  an  informa- 
tion in  the  nature  of  a  quo  warranto  against  them,  it  was  objected 
])v  \]\i-  .  <,iin^r1  f, ,r  t1).'  defendants,  that  the  court  never  grants  these 


§    3       AGAINST     PRIVATE    CORPORATIONS    AND    THEIR    OFFICERS.        359 

informations  but  in  cases  where  there  is  an  usurpation  upon  some 
franchise  of  the  crown ;  whereas,  in  that  case,  the  king  alone  could 
not  grant  such  powers  as  are  exercised  by  the  trustees,  the  conse- 
quence of  which  was,  that  this  authority  was  no  prior  franchise  of 
the  crown.  To  this  it  was  answered,  and  resolved  by  the  court, 
that  the  rule  was  laid  down  too  general,  for  that  informations  have 
been  constantly  granted  when  any  new  jurisdiction  or  public  trust 
was  exercised  without  authority ;  and  leave  to  file  an  information 
was,  accordingly  granted.  This  case  is  strong  authority  in  favor  of 
this  proceeding. 

Many  cases  might  be  cited,  in  which  informations,  in  the  nature 
of  quo  warranto,  have  been  refused,  where  the  right  exercised  was 
one  of  a  private  nature,  to  the  injury  only  of  some  individual.  In 
the  present  case,  the  rights  claimed  by  the  defendants  is  in  the  na- 
ture of  a  public  trust ;  they  claim  as  a  corporation,  the  right  of  issu- 
ing notes,  discounting  notes,  and  receiving  deposits.  The  notes 
■  hey  issue,  if  their  claim  be  well  founded,  are  not  obligatory  on  the 
individuals  who  compose  the  direction,  or  are  proprietors  of  the 
stock  of  the  corporation.  These  notes  pass  currently,  on  the  ground 
that  the  corporation  have  authority  to  issue  them,  and  that  they  are 
obligatory  on  all  their  ftmds ;  the  right  claimed  is  one,  therefore,  of 
a  public  nature,  and  as  I  conceive  deeply  interesting  to  the  commu- 
nity; and  if  the  defendants  cannot  exercise  these  rights,  without  a 
grant  from  the  legislature ;  if  they  do  exercise  them  as  though  they 
had  a  grant,  they  are,  in  my  judgment,  usurping  an  authority  and 
privilege  of  a  public  kind ;  and  we  perceive  that  it  is  not  necessary 
that  the  right  assumed  should  be  a  prior  franchise  of  the  crown,  or 
of  the  people  of  the  state. 

Had  the  defendants  claimed  and  exercised  the  right  of  banking 
as  private  individuals,  I  agree  that  an  information  would  not  lie 
against  them  ;  they  would  have  been  subject  only  to  the  penalties 
inflicted  by  the  act ;  but  they  claim  the  privilege  as  a  corporation, 
and  under  a  grant  from  the  legislature.  If  they  have  not  that  grant, 
they  have  usurped  and  exercised  a  franchise,  and  the  remedy  pur- 
sued is  well  adapted  to  the  case.     *     *     * 

Judgment  of  ouster. 

See  also  People  v.  Mayor,  etc.,  32  Barb.  (N.  Y.)  35;  Reynolds  v.  Bald- 
win, I  La.  Ann.  162;  People  v.  Golden  Rule,  114  111.  34;  State  v.  Nor- 
walk,  etc.,  Co.,  10  Conn.  157;  State  v.  Lindell  R.  Co.,  151  IMo.  162;  State 
V.  Commercial,  etc.,  Bank,  24  Miss.  144;  State  v.  Atchison,  etc.,  R.  Co., 
38  Neb.  437 ;    State  v.   Regents,  etc.,  55   Kans.  389. 

As  to  what  is  a  "franchise"  within  the  meaning  of  the  statutes  of  quo 
warranto,  see  also  State  v.  Ramos,  10  La.  Ann.  420;  Wests'  Appeal,  64 
Pa.  St.  186;  Whelchel  v.  State,  76  Ga.  644;  People  v.  Anderson,  etc.,  R. 
Co.,  76  Cal.  190;  Douglass's  Appeal.  112  Pa.  St.  65:  Swarth  v.  People,  109 
111.  621.     Contra: — State  v.  City  of  Topeka,  30  Kan.  653. 

See  also  State  v.  Green,   112  Ind.  462. 


360  ATTORNEY   GENERAL  V.    PERKINS    ET   AL.  g    3 

2.     To  test  the  constitutionality  of  the  act  of  incorporation. 
ATTORNEY  GENERAL  v.  PERKINS  et  al. 
J889.    Supreme  Court  of  Micpiigan.  J}^  Mich.  303,  41  N.  W.  426. 

(Quo  warranto  against  the  respondents  to  try  the  right  to  re- 
new a  mining  corporation,  whose  term  had  expired.  Plea  that  said 
renewal  was  by  virtue  of  the  statute  providing  for  such  renewal. 
Replication  set  up  the  unconstitutionality  of  said  statute.  Demur- 
rer.) 

(Only  so  much  of  the  opinion  as  relates  to  the  right  to  attack  the 
constitutionality  of  an  act  by  quo  ivarranto  is  here  given.) 

Champlin,  J,  *  *  *  Before  proceeding  to  consider  the 
merits  of  the  case  involved  by  the  points  of  law  raised  by  the  plead- 
ings, it  is  well  to  dispose  of  an  objection  taken  to  the  remedy  invoked 
by  the  attorney  general.  It  is  asserted  by  the  respondents  that  the 
constitutionality  of  an  act  of  the  legislature  cannot  be  raised  in  a 
proceeding  upon  an  information  in  the  nature  of  quo  zn'arranto, 
when  the  respondents  justify  under  such  act.  The  idea  seems  to  be 
that  the  people  are  estopped  from  questioning  the  validity  of  a  law 
enacted  by  their  representatives ;  that  to  an  accusation  by  the  people 
of  Michigan  of  usurpation  upon  their  government,  a  statute  enacted 
by  the  people  of  Michigan  is  an  adequate  answer.  The  last  propo- 
sition is  trvie,  but  if  the  statute  relied  on  in  justification  is  unconstitu- 
tional, it  is  a  statute  only  in  form,  and  lacks  the  force  of  law,  and 
is  of  no  more  saving  efifect  to  justify  action  under  it  than  if  it  had 
never  been  enacted.  The  constitution  is  the  supreme  law,  and  to  its 
behests  the  courts,  the  legislature  and  the  people  must  bow.  No  cor- 
poration in  this  state  can  exist  unless  it  be  created  by  law,  and  every 
corporation  when  called  upon  by  the  people  to  show  by  what  author- 
ity it  exercises  the  franchises  and  privileges  of  a  corporation,  must 
show  a  valid  enactment  of  the  legislature  for  its  authority.  The  legis- 
lature and  the  respondents  are  not  the  only  parties  in  interest  upon 
such  constitutional  questions.  As  was  remarked  by  Justice  Story 
in  speaking  of  an  acquiescence  by  a  party  afTected  by  an  unconsti- 
tutional act  of  the  legislature :  "The  people  have  a  deep  and  vested 
interest  in  maintaining  all  the  constitutional  limitations  upon  the 
exercise  of  legislative  powers."  Allen  v.  McKecn,  i  Sum.  314.  The 
constitutionality  of  enactments  passed  by  the  legislature  has  been 
called  in  question  in  many  cases  in  this  state  by  information  in  the 
nature  of  quo  zvarranto  filed  by  the  attorney  generaL  People  v. 
Maynard,  15  Mich.  463;  Attorney  General  v.  Amos,  60  Mich,  372; 
27  N.  W.  571  ;  People  v.  Railroad  Co.,  9  Mich.  285;  Attorney  Gen. 
v.  TTolihan,  29  Mich.  116.  The  cases  cited  in  support  of  the  position 
taken  by  res]^ondcnts  cannot  prevail  against  the  practice  so  firmly 


§    3        AGAINST     PRIVATE     CORPORATIONS     AND     THEIR     OFFICERS.        361 

established  in  this  state.  The  case  of  the  People  v.  Whitcomb,  55 
111.  172,  is  at  variance  with  that  of  Attorney  General  v.  Holihan, 
above  cited.  Besides  this  proceeding  was  not  instituted  to  test  the 
constitutionality  of  an  act  of  the  legislature,  but  to  try  the  rights  of 
certain  persons  to  exercise  the  franchises  and  privileges  of  a  corpora- 
tion, and  is  expressly  authorized  by  the  statute.  How.  St.,  §  8635. 
In  the  case  of  People  v.  R.  R.  Co.,  15  Wend.  113,  it  was  not 
claimed  that  the  statute  conflicted  with  any  constitutional  provision 
of  the  state  of  New  York,  but  it  was  claimed  that  it  violated  the 
constitution  of  the  United  States.  The  court  held  that  it  did  not. 
It  was  therefore  a  valid  law  and  a  sufficient  answer  to  a  charge  of 
usurpation.     *     *     * 

(Court   found  that  the  statute  in  question  was  unconstitutional 
and  directed  judgment  of  ouster.) 


3.     For  perversion  and  non-user  of  corporate  powers  and  privi- 
leges and  failure  to  comply  with  charter  conditions. 

COMMONWEALTH  v.  THE  COMMERCIAL  BANK  OF 
PENNSYLVANIA. 

1857.     Supreme  Court  of  Pennsylvania.     28  Pa.  St.  383. 

(This  was  a  motion  to  ([uash  a  writ  of  quo  ivarranto  issued  out  of 
the  supreme  court,  on  information  of  the  attorney  general,  to  pro- 
cure a  forfeiture  of  respondent's  franchises  because  of  its  havirjg 
dealt  in  promissory  notes,  contrary  to  the  express  prohibition  in  its 
charter,  and  because  of  having  taken  a  higher  rate  of  interest  for 
loans  than  the  rates  prescribed  in  said  charter.) 

(Only  so  much  of  the  opinion  as  relates  to  acts  constituting  good 
ground  for  forfeiture,  is  here  given.) 

The  opinion  of  the  court  was  delivered  by 

Lewis,  C.  J. — A  writ  of  quo  ivarranto  having  issued  against  the 

Commercial  Bank,  upon  a  suggestion  filed  by  the  attorney  general, 

alleging  that  the  bank  had  forfeited  its  charter  by  certain  acts  of 

misuser,  the  present  motion  was  made  to  quash  the  writ.    A  number 

of  reasons  have  been  assigned  in  support  of  the  motion,  but  thev 

may  be  resolved  into  two.     One  goes  to  the  formal  defects  in  the 

manner  of  setting  fofth  the  complaint;  the  other  to  the  merits  and 

raises  the  question,  whether  the  acts  complained  of  are  sufficient  to 

entitle  the  commonwealth  to  demand  a  forfeiture  of  the  charter.     * 
*     *     * 

(The  court  after  affirming  the  right  to  amend  an  information  and 
examining  the  right  to  deal  in  bills  of  exchange — which  it  held  was 


362      COMMONWEALTH  V.   COMMERCIAL  BANK  OF  PENNSYLVANIA.     §    3 

permitted  by  the  charter — and  the  acceptance  of  usurious  interest, 
continues), 

*  *  *  There  is  nothing  therefore,  in  the  mere  purchase  of 
these  bills  as  stated  in  the  suggestion  proposed  to  be  filed  as  an 
amendment,  which  we  can  declare  to  be  contrary  to  the  charter  of 
the  bank.  The  right  to  make  loans  by  discounting  promissory  notes 
at  the  rate  prescribed  is  plainly  deducible  from  the  terms  and  objects 
of  the  act  of  incorporation ;  but  the  right  otherwise  to  deal  in  prom- 
issory notes,  or  to  make  loans  at  a  higher  rate  than  that  prescribed, 
does  not  exist.  These  acts  are  expressly  prohibited  in  the  funda- 
mental articles.  The  question  then  arises,  do  these  constant  and 
wilful  violations  of  the  fundamental  conditions  upon  which  the 
charter  was  granted  entitle  the  commonwealth  to  demand  its  for- 
feiture? The  question  is  not  zvhether  a  single  act  or  series  of  acts 
of  misuser,  through  inadvertence  or  mistake,  may  zvork  a  forfeiture, 
but  zvhether  the  constant  and  wilful  violation  of  these  important 
conditions  of  the  grant  produce  that  eifectf  Mr.  Justice  Story,  in 
delivering  the  opinion  of  the  Supreme  Court  of  the  United  States 
in  Mumma  v.  Potomac  Company,  held,  that  "a  corporation  by  the 
very  terms  and  nature  of  its  political  existence,  is  subject  to  disso- 
lution by  forfeiture  of  its  franchises  for  wilful  misuser  or  non-user." 
8  Peters'  Reports  287.  Many  years  before  that  decision  was  pro- 
noimced,  the  same  principle  was  fully  recognized  by  the  same  high 
authority  in  Truett  et  al.  v.  Taylor  et  al.,  9  Cranch  43,  where  the 
right  of  forfeiture  for  misuser  or  non-user  was  held  to  be  "the 
common  law  of  the  land  and  a  tacit  condition  annexed  to  the  crea- 
tion of  every  corporation."  It  is  now  settled  by  mmierous  authori- 
ties, that  it  is  a  tacit  condition  of  a  grant  of  incorporation  that  the 
grantees  shall  act  up  to  the  end  or  design  for  which  they  are  incor- 
porated ;  and  hence,  through  neglect  or  abuse  of  its  franchises,  a 
corj)oration  may  forfeit  its  charter,  as  for  condition  broken,  or  for 
a  breach  of  trust ;  see  Angell  &  /Vmes  on  Corporations,  p.  660,  and 
the  cases  there  cited.  In  the  Attorney  General  v.  Petersburg  and 
Roanoke  Railroad  Company,  6  Iredell  461,  it  was  held  that  the  omis- 
sion of  an  express  duty  prescribed  by  charter  is  a  cause  of  forfeiture, 
and  that  as  implied  powers  are  as  much  protected  by  law  as  those 
which  are  expressed,  imi)lied  duties  are  equally  obligatory  with 
duties  expressed,  and  their  breach  is  visited  with  the  same  conse- 
fiucnccs.  6  Tredell  461.  //  ;//ay  he  affirmed  as  a  general  principle, 
thai  7vhcre  there  has  been  a  misuser,  or  a  non-user,  in  regard  to 
vHittcrs  ivhich  arc  of  the  essence  of  the  contract  betzveen  the  cor- 
poration and  the  state,  and  the  acts  or  omissions  complained  of  have 

been  repeated  and  wilful,  they  constitute  a' just  ground  of  forfeiture. 
J*-     *     * 

•^     *     --^     'l"hc  charter  fixes  the  rate  of  interest  on  loans  and  ex- 
prcssK    iiroliibits  the  taking  of  a  higher  rate.   Tt  also,  as  we  have 


§    3       AGAINST     PRIVATE    COKPOKATIONS     AND    THEIR    OFFICERS.        363 

seen,  prohibits  the  bank  from  dealing  in  promissory  notes.  We 
have  no  doubt  that  a  violation  of  the  charter,  in  either  of  these  par- 
ticulars, defeats  the  chief  object  of  the  grant,  and  is  good  ground 
for  demanding  judgment  of  forfeiture.  These  abuses  are  of  svich 
n^agnitude  and  effect  the  public  so  injuriously,  that,  when  wilfully 
persisted  in,  it  becomes  a  duty  of  high  obligation  on  the  part  of  those 
in  authority,  rigidly  to  enforce  the  forfeiture. 

These  are  the  views  at  present  entertained.  We  have  been 
obliged  to  express  them  in  order  to  dispose  of  this  motion.  But  the 
question,  whether  the  acts  complained  of  amount  to  a  forfeiture  of 
the  charter,  will  be  open  to  further  investigation  on  the  final  de- 
cision of  the  case. 

The  motion  to  quash  the  writ  of  quo  zvarranto  is  overruled. 


PEOPLE  EX  REL.  BISHOP  v.  KINGSTON  &  MIDDLETON 
TURNPIKE  ROAD  COMPANY. 

1840.     Supreme  Court  of  Judicature  of  New  York.     23  Wend. 

194. 

Information  in  the  nature  of  a  quo  zvarranto.  In  January  Term. 
1839,  the  attorney  general  filed  an  information  in  the  nature  of  a 
quo  warranto,  against  the  Kingston  &  Middleton  Turnpike  Road 
Company,  charging  them  with  usurping  the  liberties,  privileges  and 
franchises  of  being  a  body  politic  and  corporate,  by  the  name  of  the 
Kingston  and  Middleton  Turnpike  Road  Company,  and  by  that 
name  to  construct  and  maintain  a  turnpike  road  within  certain 
bounds  (specifying  the  same),  and  to  erect  and  maintain  gates  and 
turnpikes  upon  such  road,  and  to  levy  and  collect  tolls  from  all  per- 
sons using  the  same.  All  which  liberties  and  privileges  he  charged 
to  have  been  usurped.     *     *     * 

(Defendants  pleaded  their  incorporation  by  an  act  of  the  legisla- 
ture and  their  erection  and  maintenance  of  a  turnpike  from  Kings- 
ton to  Delaware  County :  also  subsequent  acts  extending  the  time 
for  the  completion  of  the  turnpike.  To  this  plea  the  attorney  gen- 
eral filed  thirty  replications  setting  forth  as  many  distinct  failures  to 
comply  with  the  charter  provisions.) 

By  the  court.  Nelson,  C.  J.  It  is  contended  that  the  matters  set 
forth  in  the  several  replications  of  the  attorney  general,  are  not 
causes  of  forfeiture  of  the  corporate  privileges  of  the  defendants, 
and  that  therefore  the  replications  are  no  answers  to  the  plea.  The 
first  24  contain  matters  which,  if  true,  show  a  failure  to  perform  six 
separate  and  distinct  conditions  annexed  to  the  grant,  specifying 


364        PEOPLE  V,   KINGSTON   &  MIDDLETON  TURNPIKE  COMPANY.         §    3 

particularly  the  nature  of  each.  The  remaining  replications  will  be 
noticed  hereafter.  The  question  for  the  present  will  be,  whether 
this  breach  or  neglect  to  comply  with  any  or  all  the  requirements  of 
the  charter,  shall  work  a  forfeiture  either  by  statute,  or  at  common 
law. 

The  statute,  2  R.  S.  483,  §  39,  provides  for  the  filing  of  an  infor- 
mation against  a  corporate  body,  whenever  it  shall,  i.  Offend 
against  any  of  the  provisions  of  the  act  or  acts,  creating,  altering  or 
renewing  such  corporation  ;  or  2.  Violate  the  provisions  of  any  law 
by  which  such  corporation  shall  have  forfeited  its  charter  by  mis- 
user ;  or  3.  Whenever  it  shall  have  forfeited  its  privileges  and  fran- 
chises by  non-user;  or  4.  Whenever  it  shall  have  done,  or  omitted 
any  acts  which  amount  to  a  surrender  of  its  corporate  rights,  privi- 
leges and  franchises ;  or  5.  Whenever  it  shall  exercise  any  privilege 
or  franchise  not  conferred  upon  it  by  law. 

It  has  been  strongly  urged  for  the  defendants,  that  the  two  first 
clauses,  though  apparently  declaratory  of  two  separate  grounds  of 
forfeiture,  should  be  read  together ;  and  that  the  offenses  against 
the  provisions  of  the  act,  creating  the  corporation,  as  specified  in  the 
first,  the  same,  as  the  violation  of  any  of  the  provisions  of  the  law% 
as  specified  in  the  second,  must  be  such  as  will  work  a  forfeiture  by 
misuser  in  terms,  in  order  to  justify  the  filing  of  the  information. 
This  is  supposed  by  the  defendants'  counsel  to  have  been  the  sub- 
stance of  the  act  of  1825,  session  laws,  p.  450,  §  7,  from  which  these 
provisions  w^ere  taken.  But  on  a  reference  to  that  act,  it  will  be 
found  otherwise ;  the  two  separate  grounds  are  as  distinctly  marked 
there  as  here.  The  seventh  section  provides,  that  in  case  the  presi- 
dent, directors  and  company  of  any  corporation,  shall  at  any  time 
offend  against  any  of  the  provisions  of  the  act  or  acts  of  incorpora- 
tion, or  against  the  provisions  of  any  law  by  which  such  company 
shall  have  forfeited  its  charter  by  misuser,  etc.,  it  shall  be  the  duty 
of  the  attorney  general,  to  prosecute,  etc.,  and  obtain  judgment  that 
such  corporation  be  dissolved.  Both  statutes  obviously  intended 
that  corporations  should  fulfil  the  conditions  and  perform  the 
duties  enjoined  by  the  fundamental  law  of  their  creation,  as  the 
terms  upon  which  to  enjoy  their  privileges.  The  j^rinciple  is  not 
new ;  it  has  always  been  so  held  at  common  law  as  fundamental.  Lord 
Holt  said,  in  London  City  v.  Vanacrc,  i  Ld.  Rayni.  498,  "all  fran- 
chises which  are  granted,  are  upon  condition,  that  they  shall  be 
duly  executed,  according  to  the  charter  that  settles  their  constitu- 
tirtn  ;  and  that  being  a  condition  annexed  to  the  grant,  the  citizens 
cannr)t  make  an  alteration  ;  but  if  they  neglect  to  perform  the  terms 
of  the  patent,  it  may  be  replaced  by  scire  facias."  The  principle  is 
so  thoroughly  and  firmly  fixed  in  the  law  of  corporate  bodies,  that 
1  need  (\o  no  more  than  refer  to  some  of  the  authorities.  A  non- 
performance therefore,  of  the  conditions  of  the  act  of  incorporation. 


J;    3       AGAINST    PRIVATE    CORPORATIONS    AND    THEIR    OFFICERS.       365 

is  deemed  per  sc  a  misuser,  that  will  forfeit  the  grant  even  at  com- 
mon law ;  and  hence  if  the  reading  of  the  statute  claimed,  be  con- 
ceded, it  would  not  change  the  legal  effect.  12  Mod.  271.  Cruise, 
tit.  Franchise,  §  79;  J.  in  Heane  v.  Rodgers,  9  Barn.  &  Cress.  577; 
being  pleaded,  however,  Wilcocks  on  Cor.,  p.  334.  Angell  &  Ames 
on  Cor.  510,  and  cases  there  cited. 

But  granting  this  to  be  the  general  principle,  the  question  still 
comes  up  for  consideration,  what  departure  from  the  provisions  of 
the  charter  will  work  a  forfeiture?  Shall  every  omission  or  non- 
performance of  a  condition  of  the  grant  have  this  effect?  Though 
the  proceeding  by  information  be  against  the  corporate  body,  it  is 
the  acts  or  omissions  of  the  individual  corporators,  that  are  the  sub- 
ject of  the  judgment  of  the  court.  The  powers  and  privileges  are 
conferred,  and  the  conditions  enjoined  upon  them ;  they  obtain  the 
grant  and  engage  to  perform  the  conditions ;  and  when  charged  with 
a  breach,  I  do  not  perceive  any  reason  against  holding  them  ac- 
countable upon  principles  applicable  to  an  individual  to  whom  valu- 
able grants  have  been  made  upon  conditions  precedent  or  subse- 
quent. As  to  him,  performance  is  indispensable  to  the  vesting  or 
continued  enjoyment.  If  a  feoffment  be  made  of  lands  upon  condi- 
tion of  paying  rent,  building  a  house,  or  planting  an  orchard,  and  a 
failure  to  perform,  the  feoffer  may  enter.  So  if  an  office  be  granted, 
a  condition  is  implied  that  the  party  shall  faithfully  execute  it,  and 
for  neglect  the  grantor  may  discharge  him.  i  Bacon  629  ;  15  Wend. 
291 ;  I  id.  38S,  13  id.  530. 

Placing  corporate  grants  upon  this  footing,  there  can  be  no  great 
difficulty  in  ascertaining  the  principles  that  should  govern  condi- 
tions annexed  to  them.  The  analogous  cases  of  individual  condi- 
tional grants  will  give  the  rule.  In  these  a  reasonable  and  substan- 
tial performance  according  to  the  intent  of  the  grantor  is  required. 
Shep.  Touch.  133  ;  15  Wend.  291.  In  cases  of  conditions  subsequent, 
if  impossible  to  be  performed,  or  rendered  impossible  by  the  act  of 
God,  the  grantee  is  excused,  and  the  estate  is  absolute.  2  Bacon  676, 
tit.  Condition;  Shep.  Touch.  133,  157.  So  if  waste  be  committed  by 
a  stranger,  it  shall  not  be  a  breach  of  the  condition  of  the  lease.  2 
Bacon  652.  The  whole  law  on  the  subject  will  be  found  reason- 
able ;  and  nothing  is  required  but  what  is  within  the  means  and  abil- 
ity of  the  party  to  comply  with.  It  is  emphatically  so  with  respect 
to  corporators,  for  we  all  know  the  conditions  in  their  charters  and 
the  nature  of  them  depend  very  m.uch  upon  themselves ;  they  usually 
settle  the  terms  of  the  grant,  and  therein  consult  their  own  as  well 
as  the  public  interest.  The  acceptance  also  is  voluntary,  and  must 
be  unconditional.  Willcocks  on  Cor.  31,  and  cases  there  cited.  This 
view  of  the  case  of  conditions  subsequent  in  acts  of  incorporation, 
is  confirmed  by  the  settled  doctrine  with  respect  to  those  which  are 
precedent.    There,  as  in  the  case  of  individual  grants,  the  condition 


366        PEOPLE  V.    KINGSTON  &  MIDDLETON  TURNPIKE  COMPANY.       '^    3 

must  be  first  performed  before  the  franchise  vests.  i8  Johns.  R.  137 ; 
9  Cowen  194 ;  9  Wend.  378-9  ;  15  id.  127  ;  Angell  &  Ames  379.  Even 
where  the  corporation  undertakes  to  enforce  a  contested  claim  or 
title,  in  a  court  of  justice,  performance  of  a  condition  precedent,  if 
any  exists,  must  be  either  admitted  or  proved ;  because  being  essen- 
tial to  its  existence,  the  proof  must  be  given  before  a  suit  can  be 
maintained  in  the  corporate  name. 

Now  I  am  not  aware  of  any  ground  that  can  warrant  us  in  dis- 
tinguishing between  the  materiality  or  the  legal  effect  of  conditions 
precedent  and  subsequent ;  or  that  would  exact  the  performance  of 
the  one  as  a  condition  of  corporate  being,  and  not  of  the  other ;  the 
same  authority  prescribed  both,  and  we  are  to  presume  for  good  and 
wise  ends.  Neither  has  the  statute  authorizing  the  filing  of  informa- 
tions against  corporations  made  any  such  distinction,  as  has  already 
been  seen.  2  R.  S.  483,  §  39.  We  could  not,  therefore  make  one. 
were  we  so  disposed. 

One  strong  ground  for  regarding  the  conditions  in  these  grants 
in  the  same  light  as  in  the  case  of  private  individuals  is,  that  they 
are  mainly  obtained  with  a  view  to  private  interests.  I  admit  the 
public  interests  are  often  thereby  promoted ;  and  that  this  is  the 
chief  inducement  to  the  grant  on  the  part  of  the  legislature.  But 
most  of  them  are  sought  for,  from  considerations  of  private  gain, 
and  which  more  or  less  enter  into  the  grant  of  every  private  com- 
pany. In  this  respect  they  differ  from  public  corporations,  which 
are  but  the  investment  of  a  body  of  citizens  with  municipal  author- 
ity for  the  better  government  of  a  place.  The  corporators  have  no 
private  interest  in  the  matter.  The  former  are  but  individuals  stip- 
ulating for  and  accepting  the  grant  upon  certain  terms  for  their  own 
benefit.  The  acceptance  unpUes  an  nndcvtakini^  to  perform  them : 
and  to  neglect  or  refuse  is  a  fraud  upon  the  legislature. 

In  further  illustration  of  the  sort  of  neglect  of  duties,  which  are 
imposed  by  the  grant  of  a  franchise,  or,  in  other  words,  the  misuser 
that  will  work  a  forfeiture,  we  may  refer  to  the  class  of  cases  that 
arise  out  of  the  forfeiture  of  offices.  These  cases  are  not  all  strictly 
analogous,  because  the  duties  enjoined  are  not  so  definite  and  accu- 
rately prescribed  as  in  cases  of  corporations ;  but  they  will  serve  as 
illustrations.  It  is  laid  down  as  a  general  principle  that  if  an 
officer  acts  contrary  to  the  nature  and  duty  of  his  office,  or  refuses 
to  act  at  all,  he  forfeits  it;  and,  if  granted  by  patent,  he  may  be 
turned  out  by  scire  facias.  5  liacon,  210.  212,  tit.  Offices  and  Offi- 
cers; 9  Coke,  50,  98.  l'V)r  in  every  grant  of  office,  there  is  an  im- 
plied condition  that  the  grantee  will  diligently  and  faithfully  execute 
the  duties  of  it.  Lord  Coke  says,  in  the  luxrl  of  Shrewsbury's  case, 
9  Coke  50,  that  there  are  three  causes  of  forfeiture:  t.  Abuser;  2. 
Non-user;  and  3.  Refusal.  The  first  is,  where  the  sheriff  or  gaoler 
permits  a  vr)hiiit.-iry  escape,  or  abuses  the  ])rivilcgcs,  etc.;  or  a  for- 


§    3       AGAIXSr     rKIVAJ'K     CORPORATIONS    AND    THEIR     OFFICERS.        367 

ester  or  parker  cuts  wood,  unless  for  necessary  brush.  The  second, 
where  the  officer  is  concerned  in  the  administration  of  justice,  or  of 
the  commonwealth  and  neglects  to  attend  upon  his  duties ;  and  the 
third,  where  he  is  bound  to  attend  upon  reqviest,  and  refuses ;  in 
either  case  the  office  is  forfeited.  Sickness  is  an  excuse ;  but  in  the 
case  of  a  searcher  of  a  port,  voluntary  absence  when  search  should 
be  made,  is  not.  Cro.  Car.  491.  And  Lord  Holt  held  that  the  volun- 
tary absence  of  a  recorder  of  Ipswich,  he  holding  a  public  office, 
was  cause  of  forfeiture,  though  no  inconvenience  ensues.  2  Ld. 
Raym.  1237..  Mr.  Hawkins  doubts  this,  but  adds,  that  he  who  so  far 
neglects  a  public  office  as  plainly  to  appear  to  take  no  care  of  it, 
should  rather  be  immediately  displaced  than  the  public  be  in  danger 
of  suffering  damage,  i  Hawk.  311,  b.  i,  ch.  67,  §  i.  Lord  Mans- 
field in  Rex  v.  Wells  corporation,  4  Burr.  2004,  said  that  a  general 
neglect,  or  refusal  to  attend  the  duties  of  a  public  office,  is  a  reason 
of  forfeiture,  a  determined  neglect  or  wilful  refusal,  but  a  single  in- 
stance of  omitting  to  attend,  when  no  particular  business  was  ex- 
pected, nor  in  fact  happened,  is  a  very  different  case.  It  is  said  that 
one  negligent  escape  by  the  sheriff  is  not  a  cause  for  forfeiture ;  but 
that  one  voluntary  escape  is ;  so  of  two  or  more  negligent  escapes. 
5  Bacon  210;  4  Burr.  2007.  Thus  it  will  be  seen  that  the  franchise 
of  an  office  held  upon  an  implied  condition  of  diligently  and  faith- 
fully executing  the  duties  belonging  to  it,  may  be  forfeited  by  gen- 
eral neglect,  or  wilful  refusal  to  perform.  The  ingredient  of  a  had 
cr  corrupt  motive  need  not  enter  into  the  cause,  it  is  enough  if  the 
duty  is  neglected  or  designedly  omitted. 

The  hardship  of  exacting  from  corporations  a  fulfillment  of  all 
the  conditions  of  the  charter,  has  been  urged  upon  us ;  but  the  ap- 
peal is  made  to  the  wrong  forum.  That  is  a  question  to  be  settled 
with  the  legislature  that  prescribed  them.  It  is  not  for  the  courts  to 
say  one  condition  is  material,  and  must  be  performed  on  pain  of 
forfeiture ;  and  another  is  unimportant  and  may  be  dispensed  with, 
or  enforced  by  indictment  or  pecuniary  penalty.  Where  shall  we 
draw  the  line?  The  statute  makes  no  such  distinction;  if  corpora- 
tions offend  against  ''any  of  the  provision  or  provisions  of  the  act  or 
acts  creating"  them,  the  information  may  be  filed  and  judgment  of 
ouster  rendered.  2  R.  S.  483,  §  39 ;  id.  485,  §  49.  Besides,  the  hard- 
ship is  no  greater  than  in  the  case  of  individual  grants,  where  in  a 
court  of  law  nothing  short  of  performance  or  act  of  God,  or  of  the 
grantor,  will  excuse  the  forfeiture.  While  this  rule  is  steadily  en- 
forced against  them,  I  do  not  perceive  how  we  can  deny  its  appli- 
cation to  the  case  of  a  private  association  of  individuals.  If  the  con- 
dition is  onerous,  and  unessential  to  the  purposes  of  the  charter,  re- 
lief is  plain,  and  at  hand ;  the  legislature  will  repeal  it.  While  it 
remains  on  the  statute  books  we  are  to  presume  it  was  deemed  ma- 
terial by  those  who  had  a  right  to  judge  of  the  matter,  and  should 
be  enforced.    I  speak  now  of  express  conditions ;  where  they  are  im- 


368         PEOPLE  V.   KINGSTON   &  MIDDLETON   TURNPIKE  COMPANY.         §    3 

plied,  and  of  course  undefined,  except  by  construction  of  law,  a 
more  indulgent  consideration  may  well  be  given.  We  are  not  then 
tied  to  the  letter  of  the  statute.  Their  materiality  to  the  great  end 
of  the  institution  may  be  regarded,  and  enter  into  the  judgment  of 
the  court. 

The  remedy  by  repeal  being  thus  plain  and  easy,  I  am  unable  to 
appreciate  the  force  of  the  appeal  on  the  ground  of  hardship,  even 
if  properly  made  to  us.  I  desire  to  treat  these  institutions  with  all 
reasonable  indulgence,  consistent  with  the  express  injunctions  of 
the  law.  Under  proper  regulations,  they  are  often  eminently  useful 
instruments  in  the  hands  of  citizens  to  promote  valuable  and  meri- 
torious enterprises,  public  and  private ;  and  at  an  early  day,  and  even 
at  this  time,  none  more  so  than  those  institutions  to  construct  our 
public  thoroughfares,  or  less  gainful  to  the  corporators.  But  their 
usefullness  as  well  as  public  favor  depend  upon  an  honest  and  faith- 
ful fulfillment  of  the  duties  they  have  assumed.  It  is  the  neglect  of 
these,  the  failure  to  live  up  to  the  fundamental  law  of  their  being, 
that  has  mainly  contributed  to  the  doubt  as  to  the  wisdom  of  their 
creation,  and  the  disfavor  with  which  they  are  now  regarded  by 
many.  Their  own  as  well  as  the  public  interests  will  be  best  con- 
sulted by  holding  them  to  a  strict  accountability.  The  terms  and 
conditions  of  their  grant  being  settled  and  accepted,  they  ought  not 
be  allowed  to  act  beyond  its  scope  and  end,  nor  come  short  of  it. 
Within  this  line  of  duty,  their  acts  should  be  liberally  expounded, 
and  indulgently  regarded  both  by  the  courts  and  the  public. 

For  the  above  reasons  I  am  of  the  opinion  that  the  true  construc- 
tion of  the  statute  authorizing  proceedings  against  corporations  by 
information,  imposes  the  penalty  of  forfeiture  on  failure  to  perform 
any  express  condition  annexed  in  the  act  of  incorporation ;  that  it  is 
a  misuser  within  the  meaning  of  the  49th  section,  and  would  be  so 
regarded  even  at  common  law,  as  a  fimdamcntal  rule  in  respect  to 
corporate  bodies  ;  and  applying  this  principle  to  the  issue  upon  the 
first  twenty-four  replications,  it  follows  that  the  people  arc  entitled 
to  judgment,  unless  concluded  bv  the  license  of  the  governor.     '"'     * 

('Tlic  court  held  that  the  license  of  the  governor  was  not  con- 
clusive and  could  not  be  pleaded  and  rendered  judgment  for  the  re- 
lator.    Dissenting  opinion  of  Cowen,  J.,  is  omitted.) 

See  also  People  v.  North  River,  etc.,  Co.,  121  N.  Y.  582;  People  v.  ChicaQ:o, 
etc.,  Co.,  1.30  111.  268;  Distilling,  etc.,  Co.  v.  People,  156  Til.  448;  Chrystal 
Fee,  etc.,  Co.  V.  State,  2.3  Tex.  Civ.  App.  293;  State  v.  Buckeye,  etc.,  Co., 
61  Oh.  St.  520:  State  v.  .Standard  Oil  Co.,  40  Oh.  St.  137;  State  v.  Nebraska, 
etc.,  Co.,  29  Neb.  700,  holdin);i:  quo  warranto  to  be  the  proper  remedy  to 
protect  the  state  against  monopolies  and  combinations  of  corporations  hav- 
inR  for  their  object  the  restraint  of  trade. 


§    3       AGAINST     PRIVATE    CORPORATIONS    AND    THEIR     OFFICERS.       369 

STATE  EX  REL.  ATTORNEY  GENERAL  v.  MINNESOTA 
THRESHER   MANUFACTURING   COMPANY. 

1889.     Supreme  Court  of  Minnesota.     40  Minn.  213,  41  N,  W. 

1020.     , 

(Information  in  the  nature  of  quo  zvarranto  alleging  that  re- 
spondent company  was  doing  business  without  having  first  filed  its 
certificate  of  incorporation,  that  it  had  unlawfully  dealt  in  nego- 
tiable paper,  that  it  had  vtnlawfully  purchased  and  retired  its  own 
stock,  and  that  it  had  used  its  charter  for  a  cloak  for  fraud  and 
oppression.) 

(Only  so  much  of  the  opinion  as  relates  to  the  distinction  between 
"franchises"  and  "powers"  is  here  given.) 

Mitchell.  J.  *  *  ''''  While  it  is  not  necessary  here  to  go  at 
length  into  the  subject,  yet  it  is  proper  in  this  connection  to  con- 
sider briefly  the  second  principal  question  referred  to  at  the  outset, 
viz.,  the  office  of  an  information  in  the  nature  of  quo  warranto^ 
and  what  will  amount  to  such  a  misuser  of  corporate  franchises 
as  to  justify  a  judgment  of  forfeiture  in  such  proceedings.  And 
right  here  it  is  important  to  keep  in  mind  certain  distinctions  which 
it  seems  to  us  the  counsel  for  the  relator  have  overlooked.  And, 
first,  these  special  proceedings  upon  information  must  not  be  con- 
founded with  a  civil  action,  under  Ch.  79,  Gen.  Stat.  Although, 
in  a  general  sense  the  two  may  be  termed  "concurrent  remedies" 
yet  it  is  undoubtedly  true  that  the  office  or  function  of  the  latter 
has  been  enlarged  somewhat  beyond  that  of  a  common  law  quo 
ivarranto  information.  In  some  jurisdictions,  as  formerly  with  us, 
the  civil  action  is  the  only  remedy.  But  while,  quo  zvarranto  having 
been  revived  in  this  state,  we  have  now  the  two  remedies,  yet  the 
office  of  the  writ  of  quo  zvarranto  ought  not  to  be  extended  beyond 
what  it  was  at  common  law.  The  remedy  by  civil  action  is  more 
in  accordance  with  the  ordinary  mode  of  judicial  procedure,  in 
determining  property  rights  and  ought  to  be  pursued  except  in 
those  exceptional  or  special  cases  where  the  public  interests  seem 
to  demand  a  more  speedy  or  summary  mode  of  procedure  than  by 
action  in  the  district  court.  The  common  law  quo  zvarranto  infor- 
mation, as  we  have  it  today,  is  substantially  as  left  by  the  changes 
and  modifications  made  by  the  statute  of  9  Anne,  Ch.  20.  The 
scope  of  the  remedy  furnished  by  it  is  to  forfeit  the  franchises 
of  a  corporation  for  misuser  or  nonuser.  It  is  therefore  necessary 
in  order  to  secure  a  judicial  forfeiture  of  respondent's  charter  to 
show  a  misuser  of  its  franchises  justifying  such  a  forfeiture; 
and  as  already  remarked,  the  object  being  to  protect  the  public, 
and  not  to  redress  private  grievances,  the  misuser  must  be  such 
as  to  work  or  threaten  a  substantial  injury  to  the  public,  or 
such  as  to  amount  to  a  violation  of  the  fundamental  condition  of 


370      ATTORXEV    GENERAL    V.     MINNESOTA    THRESHER     MFG.    CO.       §    3 

the  contract  by  which  the  franchise  was  granted,  and  thus  defeat 
the  purpose  of  the  grant ;  and  ordinarily  the  wrong  or  evil  must  be 
one  remediable  in  no  other  form  of  judicial  proceeding. 

Courts  always  proceed  with  great  caution  in  decreeing  a  for- 
feiture of  franchises,  and  require  the  prosecutor  seeking  the  for- 
feiture to  bring  the  case  clearly  within  the  rules  of  law  entitling 
him  to  exact  so  severe  a  penalty.  It  is  also  necessary  to  notice  the 
distinction,  frequently  overlooked,  between  ''franchises"  and 
"poivers."  The  definition  of  a  franchise  given  by  Finch,  adopted 
by  Blackstone  and  accepted  by  every  authority  since,  is  "a  royal 
privilege  or  branch  of  the  king's  prerogative,  subsisting  in  the 
hands  of  a  subject."  To  be  a  franchise  the  right  possessed  must  be 
such  as  cannot  be  exercised  without  the  express  permission  of  the 
sovereign  power, — a  privilege  or  immunity  of  a  public  nature 
which  cannot  be  legally  exercised  without  legislative  grant.  It 
follows  that  the  right,  whether  existing  in  a  natural  or  artificial 
person,  to  carry  on  any  particular'  business,  is  not  necessarily  or  usu- 
ally a  franchise.  The  kinds  of  business  which  corporations  organ- 
ized under  either  title  2,  Ch.  34,  or  under  the  act  of  1873,  are 
powers  but  not  franchises,  because  it  is  a  right  possessed  by  all  citi- 
zens who  choose  to  engage  in  it  without  any  legislative  grant.  The 
only  franchise  which  such  corporations  possess  is  the  general 
franchise  to  be  or  exist  as  a  corporate  entity.  Hence,  if  they 
engage  in  any  business  not  authorized  by  the  statute,  it  is  ultra  vires. 
or  in  excess  of  their  powers,  but  not  an  usurpation  of  a  franchise 
not  granted,  nor  necessarily  a  misuser  of  those  granted.  Acts 
in  excess  of  power  may  undoubtedly  be  carried  so  far  as  to  amount 
to  a  misuser  of  the  franchise  to  be  a  corporation  and  a  ground 
for  its  forfeiture.  How  far  it  must  go  to  amount  to  this  the  courts 
have  wisely  never  attempted  to  define,  except  in  very  general  terms, 
preferring  the  safer  course  of  adopting  the  gradual  process  of  judi- 
cial inclusion  and  exclusion  as  the  cases  arise.  But  zve  think  that 
it  may  be  safely  stated  as  the  general  consensus  of  the  ontJiorities 
that,  to  constitute  a  misuser  of  the  corporate  franchise,  such  as  to 
zvarrant  its  forfeiture  the  ultra  vires  acts  must  he  so  substantial 
and  continued  as  to  amount  to  a  clear  violation  of  the  condition 
upon  zvhich  the  franchise  zvas  granted,  and  so  derange  or  destroy 
the  business  of  the  corporation  that  it  no  longer  fulfills  the  ends  for 
which  it  zvas  created.  But,  in  case  of  the  excess  of  powers,  it  is 
only  where  some  public  mischief  is  done  or  threatened  that  the  state, 
by  the  attorney  general  should  interfere.  If.  as  between  the  company 
and  its  stockholders,  there  is  a  wrongful  application  of  the  capital, 
or  ,'in  illegal  incurring  of  liabilities,  it  is  for  the  stockholders  to  com- 
plain. If  the  company  is  entering  into  contracts  ultra  vires,  to  the 
prcjndicc  of  persons  outside  the  corporation,  such  as  creditors, 
it  \^  for  such  persons  to  take  steps  to  protect  their  interests.  The 
nii-n-    frif^t  that   acts  are   ultra  virrs   is   not   necessarily,   a   ground 


§    3       AGAINST    PRIVATE    CORPORATIONS    AND    THEIR    OFFICERS.       37I 

for  interference  by  the  state,  especially  by  quo  warranto,  to  forfeit 
the  corporate  franchises.  It  should  also  be  born  in  mind  that  acts 
iiltra  vires  may  justify  interference  on  the  part  of  the  state  by 
injunction  to  prohibit  a  continuance  of  the  excess  of  powers  whicli 
would  not  be  a  sufficient  ground  for  a  forfeiture  in  proceedings  in 
quo  warranto,  and  hence  many  of  the  numerous  authorities  cited 
by  the  relator,  being  of  that  class,  are  not  entirely  in  point  here. 
Applying  these  principles  to  the  facts  of  this  case,  we  think  the 
state  has  failed  to  make  out  a  case  entitling  it  to  judgment  against 
the  respondents.  Taking  up,  first,  the  issuing  of  its  stock  for  the 
stock  and  indebtedness  of  the  car  company :  None  of  the  stockholders 
have  any  right  to  complain  of  this.  They  are  all  in  the  same  boat. 
They  got  up  the  company  for  that  express  purpose  and  on  that 
exact  plan.  A  corporation  may  take  property  in  payment  of  its 
stock,  if  it  be  done  bona  iidc,  and  with  no  sinister  or  fraudulent 
purpose,  and  there  be  nothing  in  its  charter  or  the  nature  of  its 
business  that  forbids  it.  If  this  stock  and  indebtedness  of  the 
car  company  was  taken  in  payment  of  respondent's  stock,  with 
a  fraudulent  purpose,  at  fictitious  values,  in  case  the  corporation  be- 
comes insolvent,  creditors  have  their  remedy  against  the  stock- 
holders, as  personally  liable  for  stock  not  paid  for.  The  alleged 
unlawful  purchase  and  retirement  of  part  of  its  own  stock  by  the 
respondent  stands  on  the  same  footing.  If  it  is  a  wrong  to  other 
stockholders,  they  have  a  perfect  remedy ;  and,  so  far  as  cred- 
itors are  concerned,  if  the  act  is  illegal,  the  parties  who  surrendered 
the  stock  woidd  still  be  personally  responsible  as  stockholders  in 
case  of  the  insolvency  of  the  corporation.  It  may  be  that  the 
plan  on  which  this  corporation  is  organized  is  not  in  accordance 
with  the  most  approved  financial  principles,  but  with  these  financial 
matters  we  have  nothing  to  do,  except  so  far  as  they  may  affect 
the  legal  questions  involved ;  and,  upon  the  whole  facts  of  the  case, 
we  do  not  think  that,  under  the  rules  of  law  applicable,  the  state 
has  made  out,  a  case  entitling  it  to  a  judgment  of  forfeiture  in 
these  proceedings.  It  is  also  a  consideration  not  without  weight 
(although  we  do  not  place  our  decision  upon  it)  that  the  conse- 
quences of  whatever  mistakes  or  unauthorized  acts  may  have  been 
done  or  made  by  respondent  could  not  now  be  remedied  by  any 
such  judgment.  In  view  of  the  present  condition  of  respondent's 
business,  a  dissolution  of  the  corporation  and  a  forced  winding  up 
of  its  affairs,  would  involve  new  and  additional  loss  to  all  parties 
concerned,  both  stockholders  and  creditors.  The  demurrer  to  the 
answer  is  therefore  overruled,  and  the  information  dismissed. 

Quo  zvarrantn  does  not  lie  to  correct  ultra  vires  acts  of  a  corporation. 
State  V.  Hannibal,  etc.,  Co.,  37  Mo.  App.  496.  But  such  ultra  vires  acts 
may  be  treated  as  usurpations  of  powers  and  an  action  of  quo  warranto 
seeking   ouster — and   in    some   cases    even    forfeiture — maintained. 


^-2  STATE   v.    RAILWAY    COMPANY.  §    3 

STATE   V.   RAILWAY   COMPANY. 
1884.     Supreme  Court  Commission  of  Ohio.     40  O.  St.  504. 

*  *  *  Ij^  August,  1876,  an  information  in  the  nature  of  a  quo 
zcarranto  was  filed  in  the  district  court  of  Mahoning  County,  against 
the  Hazelton  and  Leetonia  Railway  Company,  asking  that  it  be 
ousted  of  its  franchise  to  be  a  corporation  and  of  all  its  franchises 
as  such.  To  this  information  special  demurrers  were  filed  and 
sustained  by  the  court.  In  accordance  with  leave  granted  by  the 
court  an  amended  information  was  filed  May  15,  1877,  which 
contained  three  counts.  To  each  of  these  counts,  pleas  were  filed. 
The  issues  were  made  up  by  replication  on  the  part  of  the  relators. 
The  controlling  questions,  as  made  by  the  pleadings  were  two : — 

1.  Did  the  Hazelton  &  Leetonia  Railway  Company  misuse  the 
powers,  franchises  and  privileges  conferred  upon  it? 

2.  Did  it  non-use  its  powers,  franchises  and  privileges  for  a 
period  of  five  years  before  the  filing  of  the  original  information? 

The  district  court  found  in  favor  of  the  railway  company,  and 
the  case  is  in  this  court  upon  a  petition  in  error. 

Nash^  J. — The  only  question  which  we  can  determine  in  this 
case  is,  as  to  whether  the  judgment  of  the  district  court  was  mani- 
festly against  the  weight  of  the  evidence.  After  an  examination  of 
all  the  testimony,  we  cannot  concur  in  the  finding  of  the  district 
court.  To  our  minds  there  had  been,  for  five  years  prior  to  the 
commencement  of  this  proceeding,  not  only,  a  non-user  of  the 
])(nvcrs,  franchises  and  privileges  conferred  upon  this  corporation, 
but  there  had  also  been  a  palpable  misuse  of  them. 

Under  its  charter  this  railway  company  had  the  right  to  con- 
struct and  operate  a  railway,  as  a  common  carrier  and  for  the 
benefit  of  the  public,  from  the  town  of  Hazelton  to  the  village  of 
Leetonia.  It  assumed  the  performance  of  duties  for  the  benefit 
of  the  public  generally.  It  wholly  failed,  prior  to  the  filing  of  the 
original  information  to  take  any  steps  looking  toward  the  accom- 
plishment of  this  purpose.  It  condemned  a  right  of  way  and  con- 
structed a  track  about  two  and  one  half  miles  in  length,  three 
feet  two  inches  wide,  with  heavy  grades  and  sharp  curves,  to  coal 
mines  owned  and  operated  by  the  principal  corporators  and  stock- 
holders of  the  railway  company,  and  suitable  only  for  the  transfer 
'>f  the  coal  from  these  mines  to  Hazelton,  where  there  are  other 
railroads.  No  passenger  cars  were  put  upon  the  road,  no  depots  or 
freight  houses  were  constructed,  and  nothing  done  to  secure  or 
accommodate  public  traffic  or  travel.  Judging  by  the  things  done 
by  the  corporation,  its  sole  object  was  to  ftuMiish  a  means  of  trans- 
ferring the  products  of  the  private  mines,  owned  and  operated  by 
the  |)rinci])al  incorporators  and  stockholders,  to  a  place  where  they 
coiiUl  be  carried  to  market. 

Judgment   reversed   and   cruise   remanded. 


§    3       AGAINST     PRIVATE     CORPORATIONS     AND    THEIR     OFFICERS.        373 

4.     To    oust    foreign    corporations    from    doing    business    within 
the  state. 

STATE  EX  REL.  ATTORNEY  GENERAL  v.  FIDELITY  & 
CASUALTY   INSURANCE   COMPANY. 

1888.     Supreme  Court  of  Minnesota.     39  Minn.  538;  41  N.  W. 

108. 

Dickinson^  J. — This  is  a  proceeding  upon  information  in  the 
nature  of  quo  zvarranto  to  try  the  right  in  the  above  named  respon- 
dent, a  corporation  of  the  state  of  New  York,  to  carry  on  within 
this  state  the  business  of  insurance  against  these  three  classes 
of  risks,  viz.,  injury  or  death  of  persons  caused  by  accident,  breacli 
of  trust  by  persons  holding  places  of  public  or  private  trust,  and 
the  breakage  of  plate  glass.  The  case  is  presented  for  decision 
upon  the  relator's  demurrer  to  the  answer  of  the  respondent.  It 
it  contended  on  the  part  of  the  respondent  that  this  is  not  an 
appropriate  method  of  procedure.  We  hold  the  contrary.  A  state 
has  the  power  of  a  sovereign  to  prohibit  foreign  corporations  from 
exercising  their  franchises,  carrying  on  their  ordinary  corporate 
business,  within  its  borders ;  and  when,  in  defiance  of  such  prohibi- 
tion, and  contrary  to  our  law,  a  foreign  corporation  does  assume 
to  exercise  corporate  franchises  in  a  manner  afifecting  the  public 
interests,  quo  zcarranto  will  lie  for  the  purposes  of  determming 
the  right  in  question,  and  of  applying  a  remedy,  although  it  is  true 
that  the  courts  of  a  state  have  no  power  to  affect  by  their  judgments 
the  corporate  existence  of  foreign  corporations.  We  can  restrain 
the  exercise  within  our  own  jurisdictions,  of  corporate  franchises 
inconsistent  with  our  own  sovereignty,  whether  the  corporation 
w^hose  acts  are  in  question  be  domestic  or  foreign.  State  v.  Rail- 
road Company,  25  Vt.  433.  And  see  People  v.  College,  5  Wend. 
211.  It  is  said  on  the  part  of  the  respondent,  that  we  ought  not 
to  entertain  the  proceeding  because  the  determination  of  the  ques- 
tion whether  it  should  be  licensed  and  admitted  to  transact  its  busi- 
ness in  this  state  is  committed  by  law  to  a  branch  of  the  executive 
department  of  the  state,  and  that  the  judicial  department  of  the 
state  has  no  constitutional  control  over  the  action  of  the  executive 
department.  In  this  the  counsel  for  respondent  fail  to  distinguish 
between  the  authority  of  the  judicial  department  to  control  the  action 
of  executive  officers,  and  the  power  and  duty  of  the  courts  to  de- 
termine, in  causes  before  them,  the  rights  of  parties  althoup-h  the 
legal  propriety  and  effect  of  the  action  of  executive  state  officers 
may  thus  necessarily  be  brought  into  question.  We  have  assumed 
without  so  deciding,  that  the  insurance  commissioner,  in  respect 
to  the  discharge  of  his  duties,  is  exempt  from  judicial  control. 

The  insurance  commissioner,  in  granting  certificates  or  licenses 


374  MACY  V.   HILLSDALE  &  CHATHAM  TURNPIKE  CO.  §    3 

to  foreign  corporations  to  do  business  here,  acts  in  a  ministerial 
capacity.  His  determination  and  action  are  not  judicial  and  final. 
It  our  statute.,  to  be  hereinafter  recited,  prohibits  foreign  corpora- 
tions, under  certain  circumstances,  to  do  business  in  this  state,  the 
authority  or  license  of  the  commissioner  in  disregard  of  that  stat- 
ute would  be  unavailing.     *     *     * 

(The  court  after  examining  the  matter  of  "retaliatory  laws"  as 
affecting  foreign  corporations  and  finding  that  the  effect  of  the  Min- 
nesota statute  would  not  be  to  exclude  respondent  from  transacting 
the  business  of  insurance  in  Minnesota,  ordered  the  writ  to  be 
quashed.) 

Sec  also  State  v.  Fidelity,  etc.,  Co.,  "]"]  Iowa,  64S:  State  v.  W.  U.  M. 
Life  Ins.  Co.,  47  Oh.  St.  167;  State  v.  Mutual,  etc.,  Ins.  Co.,  59  Kau  772;  State 
V.  Portage  City,  etc.,  Co.,  107  Wis.  441.  451;  State  v.  Standard  Oil  Co., 
61   Neb.  28;   State  v.  Vigilant  Ins.   Co.,  30  Kan.   585. 

The  fact  that  a  corporation  is  engaged  in  interstate  commerce  does  not 
emancipate  it  from  the  control  of  the  state  which  created  it,  and  quo 
-warranto  will  lie  to  forfeit  its  franchises  and  dissolve  it.  State  v.  Cin- 
cinnati, etc.,  R.  Co.,  47  Ohio  St.   130,  7  L.  R.  A.  319. 


5.     Discretion  in  granting  or  refusing  the  writ. 

PEOPLE  EX  REL.  MACY  et  al.  v.  HILLSDALE  &  CHATHAM 
TURNPIKE  COMPANY. 

1807.     Supreme  Court  of  New  York.     2  Johnson  190. 

WooDWORTii,  Attorney  General,  moved  for  a  rule,  that  the 
defendants  show  cause,  by  the  next  term,  why  an  information,  in 
the  nature  of  a  quo  warranto,  should  not  be  filed  against  them. 
He  read  affidavits,  stating,  that  the  road  had  been  opened,  through 
the  land  of  the  complainants,  and  used  without  any  offer  having 
been  made  to  them  to  agree  upon  the  compensation,  and  without 
having  the  damages  ascertained  according  to  law. 

Per  curiam. — Tf  the  defendants  have  not  followed  the  directions 
of  the  act,  relative  to  the  compensation  to  be  made  to  the  owners 
of  the  land,  through  which  the  road  has  been  made,  they  are 
trespassers,  and  the  complninanis  have  adequate  remedy  in  the 
usunl  course  of  the  common  h\v.  The  public  are  no  way  interested 
in  the  controversv  or  romnbint.  and  that  is  a  sufficient  reason 
for  not  granting  this  extraordinary  remedy. 

T^ule  refused. 


§    3        AGAINST     I'RIVATE    CORPORATIONS     AND    THEIR     OFFICERS.        375 

STATE  [.:x  rel.  O'P.RIF.X  v.  THE  KILL  BUCK  TURNPIKE 

CO. 

1871.     Supreme    Court    of    Indiana.     38    Ind.    71. 

WoRDEN,  C.  J. — This  was  an  information  filed  under  the  provi- 
sions of  Article  44,  2  G.  &  H.  322,  by  the  appellant  against  the 
appellee.  Demurrer  to  the  information  sustained,  and  final  judg- 
ment for  the  defendant.     Exception. 

The  information  alleges  that  the  defendant  is  a  corporation, 
organized  under  the  act  of  May  12,  1852,  authorizing  the  con- 
struction of  plank,  etc.  roads,  i  G.  &  H.  474.  It  further  alleges 
that  the  corporation  has  wrongfully  and  unlawfully  exercised  powers 
not  conferred  by  law,  in  this,  that  it  has  entered  upon  the  land 
of  three  several  persons,  naming  the  persons  and  describing  the 
land,  and  cut  timber,  dug  up  soil,  gravel,  etc.,  and  constructed  its 
road  upon  said  lands  without  any  authority  or  license  from  the 
respective  owners  of  the  land,  and  to  their  great  damage. 

For  aught  that  appears  in  the  information,  the  defendant  may 
have  proceeded  to  condemn  the  lands,  and  may  have  paid  the 
condemnation  money  as  provided  for  in  the  act  under  which  it  is 
organized.  But  supposing  no  proceedings  have  been  had  to  con- 
demn the  lands,  or  acquire  the  right  to  construct  the  road  over 
them,  we  are  of  the  opinion  that  the  facts  stated  in  the  information 
are  not  suflficient  to  w^ork  a  forfeiture  of  the  defendant's  corporate 
franchises. 

The  statute  provides  that  an  information  may  be  filed,  "Fourth, 
where  any  corporation  do  or  omit  to  do  acts  which  amount  to  a 
surrender  or  forfeiture  of  their  rights  and  privileges  as  a  corpora- 
tion, or  when  they  exercise  powers  not  conferred  by  law." 

It  is  claimed  by  the  appellant  that  this  case  comes  within  the 
last  branch  of  the  above  clause,  inasmuch  as  the  defendant  has  no 
right  to  construct  its  road,  across  anyone's  land  without  his  con- 
sent and  without  having  in  some  manner  acquired  the  right  of 
way. 

The  defendant  had  a  right  to  construct  a  road,  and  to  collect 
tolls  thereon,  and,  for  that  purpose,  to  acquire  the  right  of  way 
either  by  agreement  or  condemnation ;  and  if  it  proceeded  to  con- 
struct its  road  across  lands  without  having  acquired  the  right  of 
way  in  any  manner,  it  was  a  trespasser  but  did  not  thereby  exercise 
powers  not  conferred  by  law,  within  the  meaning  of  the  statute 
above  quoted.  We  are  not  aware  that  it  has  been  held  in  any 
case  that  a  mere  trespass  by  a  corporation  is  sufficient  to  work 
a  forfeiture  of  its  franchises.  We  think  that  the  provision  in  the 
statute  above  quoted,  in  reference  to  the  exercise  of  powers  not 
conferred  by  law,  was  intended  to  meet  cases  where  corporations 
undertake  to  exercise  corporate  powers  or  franchises  not  conferred 


376  o'brien  v.  the  kill  buck  turnpike  co.  §  3 

upon  them,  as  for  example,  where  an  insurance  company  exercises 
the  powers  of  a  banking  company,  or  where  a  corporation  of  an}- 
description  usurps  and  exercises  corporate  powers  of  a  different 
character  from  those  provided  for  in  the  law  of  its  organization. 

If  the  corporation  has  entered  upon  the  lands  of  those  persons 
named  in  the  information,  and  located  its  road  thereon  without 
leave,  not  having  acquired  the  right  of  way,  those  persons  have 
ample  legal  remedies  by  suits  in  their  own  names,  but  they  cannot 
adjust  their  private  rights  in  a  proceeding  of  this  kind.  The 
case  is  almost,  if  not  entirely,  identical  with  that  of  the  People  v. 
The  Hillsdale  &  Chatham  Turnpike  Co.,  2  Johns.  190. 

(The  court  stated  the  facts  and  quoted  the  opinion  in  the  case 
cited,  supra.) 

The  judgment  below  is  affirmed. 

Where  it  appears  that  the  acts  of  misuser  have  resulted  in  no  injury 
to  the  public  nor  are  likely  to,  the  court  will  ordinarily  refuse  to  decree 
a  forfeiture.  So  forfeiture  was  refused  in  Harris  v.  Mississippi,  etc.,  R,  Co., 
51  Miss.  602,  where  there  was  a  slisrht  deviation  from  the  charter  route; 
State  V.  Commercial  Bank,  13  Sm.  &  M.  (Miss.)  569,  where  a  bank  had 
made  an  assignment;  People  v.  Kankakee  River,  etc.,  Co.,  103  111.  491, 
where  there  was  a  failure  to  file  a  statement  of  the  Companj^'s  condition, 
the  object  of  the  statute  having  ceased;  Commonwealth  v.  Pittsburgh,  etc., 
R.  Co.  58  Pa.  St.  26,  incorporating  in  another  state ;  People  v.  Atlantic 
Ave.  R.  Co.,  125  N.  Y.  513,  for  failing  to  run  trains  for  five  days  and  re- 
quiring more  than  statutory  number  of  hours  of  labor  from  employes; 
State  V.  Barron,  58  N.  H.  370,  for  failure  to  file  statements  required  by 
statute ;  State  v.  Essex  Bank,  8  Vt.  489,  withdrawing  a  portion  of  Bank's 
capital  stock  to  reduce  amount  of  capital ;  State  v.  Commercial  Bank,  10 
Oh.  535,  for  suspension  of  bank  taking  usurious  interest,  and  dispropor- 
tionate loans  to  officers;  .A.ttorney-General  v.  Erie,  etc..  R.  Co..  55  Mich. 
15,  for  failure  to  run  its  trains  to  a  certain  village  and  for  deviation  from 
charter    route. 

But  in  the  following  cases  forfeiture  was  declared;  State  v.  Farmers,  etc., 
Asso.,  18  Neb.  276,  failure  to  comply  with  statutory  requirements ;  People 
v.  City  Bank,  7  Colo.  226,  failure  to  pay  up  entire  capital ;  State  v.  Bailey, 
16  Ind.  46,  filing  fraudulent  articles;  People  v.  Dispensary,  etc.,  Soc,  7 
Eans.  (N.  Y.)  304,  dividing  state  appropriation  with  lobbyists;  State  v. 
R.  R.  Co.,  36  Minn.  246,  suspension  of  business  for  four  years;  State  v. 
I^Iadison  St.  R.  Co.,  72  Wis.  612,  failure  to  keep  road  in  condition  required 
by  charter;  State  v.  Pennsylvania,  etc..  Co.,  23  Ohio  St.  121,  failure  to 
■keep  canal  repaired;  Bank  Coni'rs  v.  Bank,  etc.,  6  Paige  (N.  _Y.)  497. 
illegally  loaning  money  to  directors;  Commonwealth  v.  Commercial  Bank, 
28  Pa.  St.  383,  taking  usurious  interest;  State  v.  Milwaukee,  etc.,  R.  Co., 
45  Wis.  579,  590,  keeping  company's  books  and  principal  place  of  business 
outside  state;  People  v.  Improvement  Co.,  103  111.  491,  failure  to  make 
improvements  required  by  charter;  State  v.  Cincinnati,  etc..  R.  Co.,  47  Oh. 
St.  130,  discrimination  in  rates;  State  v.  Atchison,  etc.,  R.  Co.,  24  Neb. 
143,  leasing  entire  railroad  line. 


§    3       AGAINST     PRIVATE    CORPORATIONS    AND    THEIR    OFFICERS.        yj"/ 

6.     To  correct  usurpation  of  corporate  office. 
a.     American  rule. 
COMMONWEALTH  ex  rel.  CLEMENTS  et  al.  v.  ARRISON 

ET   AL. 

1826.     Supreme  Court  of  Pennsylvania.     15   Serg-.  &  R.   127. 

A  rule  was  granted  by  the  court  in  this  case,  against  Matthew 
Arrison  and  others,  the  defendants,  to  show  cause  why  an  informa- 
tion in  the  nature  of  quo  warranto,  should  not  be  filed  against 
them  for  exercising  the  office  of  "Trustees  of  the  Ninth  Presbyterian 
Church  in  Philadelphia."  The  defendants  now  objected  in  the 
first  instance,  that  the  office  they  exercised  was  not  the  subject 
of  an  information  of  this  discription. 

Argument  for  the  defendants.  The  ancient  quo  zvarranto  issued 
where  a  franchise  of  the  crown  was  usurped  by  an  individual, 
and  the  king  alone  could  proceed  against  the  usurper.  A  franchise 
is  defined  to  be  a  royal  privilege  in  the  hands  of  a  subject.  2  Bl. 
Com.  T,"/;  Finch  164,  166;  2  Inst.  493,  496;  I  Bulst.  55,  The  extent 
of  an  information  in  nature  of  a  quo  zvarranto,  is  exactly  the  same 
as  the  ancient  writ ;  it  is  not  granted  except  in  cases  where  the 
writ  lay.  Commonwealth  v.  Murray,  ii  Sergt.  and  Rawle,  73,  74; 
15  Johns.  387.  The  sole  object  of  the  writ  was.  to  resume  the 
franchise  which  had  been  usurped ;  therefore,  all  the  cases  on 
this  subject,  collected  by  Comyns  in  his  Digest,  are  of  usurpation 
on  the  crown  by  exercising  a  public  office.  6  Com.  Dig.  157;  2 
Johns.  Ch.  Tiyy.  It  has  therefore,  been  decided,  that  an  informa- 
tion of  this  kind  did  not  lie  in  case  of  private  rights,  where  no 
franchise  of  the  crown  has  been  invaded.  It  will  not  lie  for 
erecting  a  warren.  Rex  v.  Sir  William  Lowther,  i  Str.  637. 
Nor  for  forfeiture  of  the  place  of  recorder,  by  non-attendance. 
Lord  Bruce's  case,  2  Str.  891.  Nor  for  claiming  an  exclusive  right 
of  ferry.  Rex  v.  Reynell,  2  Str.  1161.  Nor  in  the  case  of  church 
wardens,  Rex  v.  Dawbeny,  2  Str.  1196;  which  may  be  considered 
a  case  strictly  analogous  to  the  present,  and  has  been  again  decided 
in  England  since.  See  15  Johns.  369.  Such  information  lies  not 
for  holding  court-leet,  and  the  reason  given  is,  that  it  is  a  private 
right,  which  may  be  tried  in  a  civil  action.  Rex  v.  Cann,  Andrews 
14.  It  will  not  lie  for  opening  a  road  without  compensation.  2 
Johns.  190.  The  statute  of  Anne  gave  this  remedy  to  private  per- 
sons and  that  statute  does  not  extend  to  Pennsylvania.  Stat.  9  Ann. 
c.  20 ;  3  Bl.  Com.  264 ;  2  Kyd  on  Cor.  424. 

In  the  present  case,  there  has  been  no  usurpation  of  a  franchise, 
against  the  state.  The  state  has  granted  the  franchise  by  charter, 
under  the  act  of  1791,  and  the  only  question  is  which  of  the  parties 


378  CLEMENTS   V.    ARRISON,  §    3 

may  exercise  this  franchise  of  being  trustee  of  the  corporation. 
Alany  of  our  corporations  under  the  act  of  the  sixth  of  April  1791, 
(3  Sm.  Laws  20),  are  private  corporations,  and  are  so  regarded 
both  by  our  legislature  and  at  common  law;  and  in  the  exercise  of 
a  sound  discretion  even  if  the  court  have  the  power  they  would  only 
grant  this  writ  in  the  cases  of  officers  which  are  usurped  against  the 
commonwealth  or  the  public  are  interested.  2  Ld.  Raym.  1409,  Case 
Temp.  Hard.  347,  i  W.  BL,  are  all  cases  in  which  the  informations 
have  been  refused  on  this  ground,  or  granted  on  the  ground  that  the 
offices  were  of  public  concern.  Informations  are  not  matters  of 
course,  but  are  discretionary.  3  Bac.  Ab.  644 ;  Hawk  P.  C.  Book  2, 
ch.  26,  §  9 ;  People  v.  Richardson,  4  Cowen  102.  What  power  have 
these  trustees,  who  are  objects  of  the  present  dispute?  They  have 
the  care  of  the  church  property,  and  are  limited  to  temporalities ; 
but  the  property  is  not  in  them,  the  public  is  in  no  way  concerned ; 
they  could  not  even  support  an  ejectment.  Let  those  pew  holders 
who  think  the  defendants  improperly  elected,  pay  their  rent  to  the 
relators.  There  are  probably  not  less  than  a  thousand  private  cor- 
porations in  Pennsylvania,  and  their  disputes  will  drive  all  other 
business  out  of  court ;  or  else  these  disputes  as  to  annual  offices  can 
not  be  decided  within  the  year,  and,  therefore,  relief  can  not  be  given. 
The  court  is  not  committed  by  former  decisions ;  the  point  is  still 
open.  The  cases  in  Pennsylvania  have  passed  sub  silcntio;  several 
of  them  relate  to  offices  of  a  public  kind ;  such  as  county  treasurer, 
inspector  of  prisons,  county  commissioners,  and  collectors  of  taxes. 
In  Com.  V.  Murray,  11  Serg.  &  Rawle  73,  the  court  evince  a  strong 
remedy  against  this  remedy  in  cases  like  the  present. 

Argument  for  the  relators.  A  quo  warranto  lies  wherever  a 
franchise  is  usurped  against  the  king's  prerogative.  2  Inst.  282 ; 
9  Co.  28  a ;  Yelv.  191 ;  Finch  164 ;  3  Bl.  Com,  262.  Now  a  franchise 
is  defined  to  be  a  royal  privilege  in  the  hands  of  a  subject.  Finch 
164;  3  Bl.  Com.  262,  and  a  privilege  of  exercising  a  corporate  trust 
comes  within  this  principle.  Accordingly,  the  court  has  exercised 
the  power  now  asked  for ;  they  did  so  in  the  case  of  the  German 
Lutheran  Church,  Com.  v.  Woel]5er,  ct  al.,  3  Serg.  &  Rawle,  29, 
where  judgment  of  ouster  was  rendered  upon  an  information  against 
])crsons  exercising  the  office  of  churchwardens  and  vestrymen,  after 
a  trial ;  and  a  fine  of  six  shillings  and  eight  pence  was  imposed,  with- 
out Gosts.  lb.  52.  In  Com.  v.  Cain  et  al.,  5  Serg.  &  Rawle  510,  an 
information  against  the  defendants  as  vestrymen  of  a  church,  was 
refused,  on  the  merits,  and  there  was  no  question  made  about  the 
j)rf)])ricty  of  granting  the  information,  if  it  had  been  a  proper  case 
for  it.  In  the  case  of  the  Com.  v.  Murray,  11  Serg.  &  Rawle 
73.  the  court  for  the  first  time,  express  doubts  concerning  the 
remedy  by  information  ;  l)iit  that  was  the  case  of  a  minister,  and 
it  was  refused  on  a  grounrl  that  was  decisive  against  the  relators 
there,  namely,  that  thev  did  not  claim  under  the  charter  by  which 


§    3       AGAINST     PRIVATE    CORPORATIONS     AND    THEIR    OFFICERS.        379L 

the  defendant  claimed.  There  are  many  previous  instances  of  the 
application  of  this  remedy  by  our  Supreme  Court;  such  as  against 
the  treasurer  of  Cumberland  county,  in  1799,  where  it  was  said  by 
Shippen,  ].,  to  be  the  first  application  of  the  kind,  Com.  v.  Wray,  3 
Dall.  490 ;  against  the  defendant  for  exercising  the  office  of  recorder 
of  Philadelphia,  which  was  refused  on  the  merits,  Com.  v.  Dallas, 
4  Dall.  229 ;  against  the  inspector  of  the  prison  of  Philadelphia, 
Com.  V.  Douglass,  i  Binn.  yy :  and  again,  the  case  of  the  informa- 
tion granted  against  a  collector  of  taxes,  an  office  of  a  subordinate 
grade  and  a  limited  sphere,  Com.  v.  Browne,  i  Serg.  &  Rawle  382. 
In  Com.  V.  Union  Ins.  Co.  of  Newberyport,  5  Mass.  230,  Chief 
Justice  Parsons  says: — Informations  of  this  kind  arc  properly 
granfable  for  the  purpose  of  inquiring  into  the  election  or  admission 
of  an  officer,  or  member  of  a  corporation,  zvhen  moved  by  any  per- 
son interested  in,  or  injured  by  such  election  or  admission.  3  Mass. 
385,  recognizes  the  same  principle.  In  England,  this  mode  of  pro- 
ceeding has  not  been  confined  to  the  limits  supposed.  In  Rex  v. 
Nicholson,  i  Str.  299,  an  information  was  granted  against  persons 
who  acted  as  trustees  under  an  act  of  parliament  for  enlarging  and 
regulating  the  port  of  Whitehaven ;  and  it  is  said,  that  an  informa- 
tion is  always  granted,  where  a  new  jurisdiction  or  public  trust 
is  executed  without  authority ;  and  various  cases  are  given  in  Kyd 
on  Corp.  395,  417,  418,  419,  421. 

In  the  present  case,  there  is  no  adequate  remedy,  but  by  informa- 
tion, many  acts  may  be  done  by  officers  de  facto,  if  suffered  to 
continue,  which  cannot  be  avoided.  The  money  received  by  them 
from  the  pews  cannot  be  recovered  back  by  an  action.  The  public 
is  greatly  concerned  in  these  corporations ;  they  are  numerous  and 
large,  and  valuable  interests  .of  every  description  are  involved  in 
them.  Suppose  individuals  illegally  chosen  take  possession  of 
the  funds  of  a  bank,  the  mischief  they  may  do  is  immense,  if  there 
be  no  summary  remedy  for  their  removal.  This  court  will  not 
be  deterred  by  the  inconvenience  of  taking  this  jurisdiction,  arising 
from  multiplicity  of  business  and  the  difficulty  of  the  question, 
since  great  good  results  from  the  exercise  of  this  power.  We 
have  not  had  altogether  a  dozen  cases  of  informations  of  this 
kind  in  fifty  years.  No  distinction  can  be  drawn  between  public 
and  private  corporations ;  or  rather,  all  are  public,  since  they  are 
emanations  from  the  supreme  power  of  the  community,  and  are 
all  established  and  regulated  by  a  public  law. 

The  opinion  of  the  court  was  delivered  by, 

TiLGHMAN,  C.  J. — A  rule  was  laid  on  the  defendants,  to  show 
cause  why  an  information  in  the  nature  of  a  writ  of  quo 
zvarranto,  should  not  be  filed  aginst  them,  for  exercising  the  office 
of  "Trustees  of  the  Ninth  Presbyterian  Church   in   Philadelphia." 

Before  entering  into  the  merits  of  the  case,  the  counsel  for  the 
defendants  made  a  preliminary  point,  viz. :  that  the  office  exercised 


380  CLEMENTS   V.    ARRISON.  §    3 

by  the  defendants  was  a  mere  private  matter,  in  which  the  pubHc  had 
no  concern,  and  therefore  not  the  subject  of  an  information.  This 
point  was  fully  and  well  argued,  and  the  court  has  been  furnished 
with  all  the  learning  to  be  found  in  the  books  on  the  subject.  The 
statute  of  9  Anne,  Ch.  20,  not  having  been  extended  to  Pennsyl- 
vania, the  court  must  derive  its  power  from  the  common  law.  Bull. 
X.  P.  211.  That,  however,  is  of  little  importance,  as  the  better 
opinion  is,  that  the  statute  gave  no  new  jurisdiction,  but  was  made 
for  the  purpose  of  regulating  informations,  and  making  the  remedy 
more  effectual,  easy,  cheap,  and  expeditious,  in  cases  of  persons 
acting  as  corporation  officers.  An  information  is  said  to  be  grantable 
only  where  the  ancient  writ  of  quo  warranto  would  lie,  and  that 
writ,  according  to  the  argument  of  the  defendants,  was  confined  to 
cases  where  there  was  a  usurpation  of  the  king's  prerogative,  or  one 
of  his  franchises,  or  a  misuser  or  nonuser  of  some  right  or  privilege 
granted  by  the  crown.  A  franchise  is  a  word  of  extensive  sig- 
nificance ;  it  is  defined  by  Finch,  whom  all  subsequent  writers  have 
followed,  to  be  "a  royal  privilege  in  the  hands  of  a  subject."  Finch, 
164.  Franchises  are  divers,  says  Finch,  and  almost  infinite;  of  such 
sort  are  the  liberty  of  holding  a  court  of  one's  own ;  the  right  of 
warren  in  another's  land ;  the  right  of  holding  markets,  fairs,  and 
taking  toll,  etc. 

The  commonwealth  stands  in  the  place  of  the  king,  and  has 
succeeded  to  all  the  franchises  and  prerogatives  proper  for  a  repub- 
lican government,  and  those  only ;  for  many  branches  of  the 
royal  prerogative  would  be  altogether  improper  in  this  country. 
Informations  have  been  granted  in  England  in  almost  all  cases 
where  the  public  were  interested  in  some  of  which  it  would  be 
difficult  to  show,  that  any  prerogative  or  franchise  of  the  kixig 
had  been  invaded.  As  in  the  case  of  the  mayor  and  common  counv  il 
of  Hartford,  who  took  upon  them  to  make  strangers  free  of  the 
corporation,  without  being  qualified  according  to  the  charter.  The 
reason  assigned  by  Buller  for  granting  this  information  was,  "be- 
cause the  injured  freemen  of  the  town  had  no  other  way  of  remedy- 
ing themselves,  or  of  trying  the  right."  To  be  free  of  a  corporation, 
was  certainly  no  royal  franchise ;  but  perhaps  in  a  very  large 
sense,  it  might  be  said  that  the  king's  prerogative  was  invaded,  when 
his  charter  was  violated,  by  admitting  one  as  a  freeman,  contrary 
to  its  provisions.  Tf  that  principle  be  correct,  it  will  have  an  impor- 
tant bearing  on  the  case  before  the  court.  An  information  was 
granted  against  certain  persons,  for  acting  as  trustees  under  an  act 
of  parliament  for  enlarging  and  regulating  the  port  of  White- 
haven,   I    Str.   200- 

The  granting  permission  to  file  informations  of  this  kind,  on  the 
application  of  private  persons,  is  a  matter  of  discretion,  and  the 
cotirt  will  refuse  it  in  cases  of  little  imi)ort,  or  where  the  injurv 
is  of  a  private  nature.     It  was  refu.sed  in  Sir  William  Lowther's 


§    3        .AGAINST   PRIVATE   CORPORATIONS   AND   PUBLIC  OFFICERS.  381 

case,  (2  Ld.  Raym.  1409,  2  Kyd  on  Corporations,  418),  "for  setting 
up  a  free  warren,"  on  the  ground  that  it  was  of  a  private  nature, 
and  therefore  proper  to  be  prosecuted  only  in  the  name  of  the  attor- 
ney general,  if  the  king  should  think  fit.  So,  in  the  King  v.  Hansell 
(9  Geo.  II  cas.  temp.  Hardw.  247),  Lord  Hardwicke  thus  expresses 
himself: — ''The  court,  indeed,  have  themselves  made  this  distinc- 
tion, to  grant  informations  for  public  usurpations ;  but  it  is  only 
of  a  private  franchise,  not  concerning  the  public  government,  as  a 
fair,  etc.,  the  court  has  sometimes  refused  them,  and  directed 
an  application  to  the  attorney  general."  It  is  observable,  that  Lord 
Hardwicke  does  not  here  deny  the  right  of  the  court  to  grant  the 
information,  but  affirms  it.  Whether  to  grant  or  refuse  it,  in  case 
of  a  church  warden,  has  been  a  vexed  question  in  England,  but  has 
been  finally  settled  against  granting  it.  I  find  no  instance  of 
an  information  in  the  nature  of  a  quo  ivarranto  in  that  country, 
except  in  case  of  the  usurpation  of  the  king's  prerogative,  or  of  one 
of  his  franchises,  or  where  the  public  or  a  considerable  number  of 
people  are  interested.  Neither  do  I  find  any  case  where  it  has 
been  denied,  that  the  court  may,  in  its  discretion,  grant  it,  where 
an  office  is  exercised  in  a  corporation,  contrary  to  the  charter.  In 
England,  the  number  of  corporations  is  very  small  indeed,  compared 
Avith  the  Lmited  States  of  America ;  consequently  the  quantity  of 
that  kind  of  business  which  may  be  brought  into  our  courts  will  be 
much  greater  than  theirs ;  but  that  alone  is  not  a  sufficient  reason  for 
rejecting  it. 

We  are  now  to  decide  a  general  question  on  the  right  of  the 
court ;  not  on  the  expediency  of  exercising  that  right,  either  in  the 
present  or  any  other  case.  Now,  to  establish  it  as  a  principle,  that 
no  information  can  be  granted  in  cases  of  what  the  counsel  call 
private  corporations,  might  lead  to  very  serious  consequences.  Per- 
haps it  may  be  said  that  banks,  and  turnpike,  canal  and  bridge  com- 
panies, are  of  a  public  nature ;  but  yet  they  have  no  concern  with 
the  government  of  the  country  or  "the  administration  of  justice. 
They  are  no  farther  public,  than  as  thev  have  to  do  with  the  great 
numbers  of  persons.  But  if  numbers  alone  is  the  criterion,  it 
will  often  be  difficult  to  distinguish  public  from  private  corporations. 
Let  us  consider  churches  for  example ;  in  some,  the  congregation 
is  very  numerous,  in  others  very  small ;  how  is  the  court  to  make 
the  line  of  distinction?  If  you  say  that  the  court  has  the  right 
in  both  cases,  to  grant  or  deny  the  information,  according  to  its 
opinion  of  its  expediency,  there  is  no  difficulty  as  to  the  right ;  but  if 
it  be  alleged  that  there  is  a  right  in  one  case,  and  not  the  other,  the 
difficulty  will  be  extreme.  /  strongly  iucUne  to  the  opinion,  that 
in  all  cases  ivhcre  a  charter  exists,  and  the  question  arises  concerning 
the  exercise  of  an  office  claimed  under  that  charter,  the  court  may, 
in  its  discretion,  grant  leave  to  file  an  information :  because  in  all 
such  cases,  although  it  cannot  be  strictly  said  that  any  prerogatrrc 


382  CLEMENTS    V.    ARRISON.  §   3 

or  frajicliise  of  the  couimomvealth  has  been  usurped,  yet,  what  is 
much  the  same  thing,  the  privilege  granted  by  the  conunonzvealth 
has  been  abused.  The  party  against  whom  the  information  is 
prayed,  has  no  claim  but  from  the  grant  of  the  commonwealth, 
and  an  unfounded  claim  is  an  usurpation,  under  pretence  of  a 
charter,  of  a  right  never  granted. 

Having  given  my  sentiments  of  the  principle  on  which  the  pres- 
ent question  turns,  I  will  now  consider  the  authorities  in  our  own 
courts,  which  I  think  bear  me  out  in  the  view  I  have  taken  of  it. 
The  first  instance  of  an  information  in  nature  of  a  quo  warranto 
was  in  the  year  1799,  in  the  case  of  the  Commonwealth  v.  Wray,  3 
Dall.  490 ;  the  defendant  exercised  the  office  of  treasurer  of  Cumber- 
land County.  The  next  reported  case  is  the  Commonwealth  v. 
Douglass,  ct  al.,  inspectors  of  the  prison  of  Philadelphia,  in  the  year 
1803;  the  information  was  granted,  i  Binn.  yy.  In  the  year  181 1, 
an  information  was  asked  and  refused  in  the  Commonwealth  v. 
Smith,  clerk  of  the  market  of  Pittsburgh,  4  Binn.  117;  the  sole 
reason  of  the  refusal  was,  that  the  supreme  court  had  no  right 
to  try  an  issue  at  Pittsburgh,  otherwise  the  information  would  have 
been  granted.  In  181 5  an  information  was  granted  against  Liberty 
Browne,  who  exercised  the  office  of  Collector  of  taxes  in  Philadel- 
phia. The  Commonwealth  v.  Woelper,  etc.,  is  very  much  in  point; 
there  not  only  was  an  information  granted  against  the  defendants, 
who  acted  as  vestrymen  -of  the  German  American  Lutheran  Church 
of  Zion,  but  on  a  trial  they  were  convicted,  and  judgment  of 
ouster  given  against  them.  If  it  be  said  that  the  defendants  made  no 
objection  to  the  power  of  the  courts,  it  is  true;  but  yet  it  is  of  some 
weight  that  the  able  counsel  for  the  defendants,  in  a  case  much  liti- 
gated, either  did  not  think  of  the  objection,  or  supposed  it  was  not 
tenable.  Next  came  the  case  of  the  Commonwealth  v.  Cain  et  al, 
vestrymen  of  St.  Thomas'  African  Episcopal  Church  of  Philadel- 
phia, in  the  year  1820,  5  Serg.  &  Rawle  510:  the  information  was 
granted  without  objection.  Last  of  all  was  the  Commonwealth  v. 
Murray,  who  claimed  to  be  the  minister  of  the  Wesley  Church 
Cm  1824,  II  Serg.  &  Rawle  73)  ;  there,  the  point  now  before  us  was 
directly  in  question  for  the  first  time ;  the  information  was  refused, 
because  the'  party  who  moved  for  it  claimed  in  opposition-  to  the 
charter  under  which  the  defendant  held ;  the  court  declined  an 
opinion  on  the  right  to  grant  the  Information  but  spoke  of  it  as 
undecided,  and  woi-thy  of  consideration.  That  is  the  only  case  in 
which  there  has  been  any  suggestion  of  doubt ;  in  all  the  others 
the  right  was  taken  for  granted.  From  the  cases  cited  in  this 
argument,  from  the  Massachusetts  and  New  York  reports,  I  con- 
clude, that  the  judges  of  these  states  are  in  favor  of  the  right 
to  grant  this  information.  I  am  of  the  opinion  that  this  court 
has  the  right  of  granting,  and  at  the  same  time,  the  right  of  re- 
fusing according  to  circumstances. 


§    3  AGAINST   I'KlVATIi:   CORPORATIONS   AND   PUBLIC  OFFICERS.  383 


See  also  Davidson  v.  State,  20  Fla.  784;  State  v.  Ashley,  i  Ark.  513; 
Covington,  etc.,  Co.  v.  Moore,  3  Ind.  510;  Attoney-Gcncral  v.  Looker,  iii 
Mich.  498;  People  v.  Albany,  etc.,  R.  Co.,  $7  N.  Y.  161;  Hunt  v.  Cemetery 
Asso.,  27  Kans.  734;  Jenkins  v.  Baxter,  160  Pa.  St.  199;  Owen  v.  Whitaker, 
20  N.  J.   Eq.   122. 


b.     English  rule. 

REGINA  V.  MOUSLEY. 

1845.     Court  of  Queen's  Bench  (England)  8  O.  B.  946,  16  L. 
J.  Q.  B.  89;  II  Jur.  56;  70  Rev.  Rep.~698. 

Sir  F.  Thesiger,  solicitor  general,  in  Trinity  Term  1844,  obtained 
a  rule  calling  upon  the  defendant  to  show  cause  why  a  quo  zuarranto 
information  should  not  be  exhibited  against  him  to  show  by  what  au- 
thority he  claimed  to  be  a  master  at  the  Hospital  and  Free  School 
of  Sir  John  Port,  Knight,  in  Etwall  and  Repton,  (otherwise  Rep- 
pingdon,)  of  the  foundation  of  the  said  Sir  John  Port,  Knight; 
upon  the  grounds  that  he  was  not  duly  elected  or  appointed  master, 
that  his  appointment  was  improperly  obtained,  and  on  other  grounds, 
(stated  in  the  rule)  setting  forfh  objections  to  the  appointments 
iTLore  specifically. 

The  case  was  argued  at  Hilary  and  Trinity  Terms  1845. 

Kelley,  Clarke,  Serjt.  and  Peacock  showed  cause: — ■ 

This  is  not  an  office  for  which  an  information  in  the  nature  of 
quo  warranto  will  lie.  Neither  the  crown  or  the  public  is  interested 
in  this  franchise,  i£  it  be  a  franchise  at  all.  There  is  merely  a 
charitable  bequest  carried  out  by  certain  machinery  regulated  by 
a  charter  and  a  private  act  of  Pafliament.  Informations  under  Stat. 
9  Anne  Ch.  20,  s.  4,  issue  only  in  the  cases  enumerated  in  the  pre- 
amble to  sect.  I ;  and  this  office  cannot  be  said  to  fall  under  the 
head  of  "offices,  within  cities,  towns  corporate,  boroughs,  and 
places."  The  cases  on  this  subject  are  collected  in  2  Selw.  N.  P. 
1 145,  etc.  (loth  ed.)  p.  1157  of  nth  ed.  In  Rex  v.  Ogden,  10  B. 
&  C.  230,  233,  Bayley,  J.,  said: — "There  is  no  instance  of  a  quo 
zvarronto  information  having  been  granted  by  leave  of  the  court 
against  persons  for  usujping  a  franchise  of  a  mere  private  nature 
not  connected  with  public  government."  In  Rex  v.  Ramsden  (42 
R.  R.  431,  3  Ad.  &  El.  456)  and  Rex  v.  Hanley,  42  R.  R.  434,  3 
Ad.  &  El.  463)  the  information  was  refused  in  the  case  of  offices 
much  more  nearly  public  than  this.  The  Jormer  decision  overrules 
Rex  v.  Beedle,  (42  R.  R.  437,  3  Ad.  &  El.  467)  Avhere,  however, 
there  was  a  fair  ground  for  contendiag  ^hat  the  office  was  public. 
In  Rex  V.  The  Master  and  Fellows  of  St.  Catherine's  Hall  (2  R.  R. 
369,  4  T.  R.  233)  this  court  held  tliat  St.  Catherine's  Hall  in  the 


384  REGINA   V.    MOUSLEY.  §    3 

University  of  Cambridge,  Avas  a  private  eleemosynary  lay  founda- 
tion, and  refused  a  mandamus  to  compel  the  masters  and  fellows 
to  declare  a  vacancy  of  a  fellowship,  on  the  ground  that  the  crown 
was  visitor,  and  the  jurisdiction  was  to  be  exercised  by  the  great 
seal ;  and  Lord  IMansfield's  opinion  in  Rex  v.  Gregory,  (2  R.  R.  371, 
4  T.  R.  240)  was  treated  as  an  obiter  dictum.  Rex  v.  Shepherd  (2 
R.  R.  416,  4  T.  R.  381)  w^here  an  information  was  refused  for  an 
office  of  a  church  warden,  is  an  authority  against  the  rule.  In  Rex 
V.  Bumstead,  (36  R.  R.  717.  2  B.  &  Ad.  699)  the  information  was 
granted ;  but  that  was  the  case  of  a  city  company  exercising  munici- 
pal powers.  Even  if  the  information  lie,  this  is  not  a  case  where 
the  court,  in  its  discretion  would  exercise  the  power.  (As  to. 
this  Rex  v.  Dawes,  4  Burr.  2022,  Rex  v.  Wardroper,  4  Burr.  2024, 
Winchelsea  causes,  4  Burr.  1962,  Rex  v.  Parry,  45  R.  R.  614,  6  Ad. 
&  El.  810,  Rex  V.  Sergeant,  5  T.  R.  466,  were  referred  to.) 

Sir  F.  Thesiger,  Solicitor  General,  Whitehurst  &  Gale,  contra: 

This  is  a  case  in  which,  if  a  quo  warranto  lies,  it  ought  to  be 
granted. 

(Patteson,  J. — The  main  question  is,  whether  the  information 
can  be  issued  in  such  a  case.  We  should  hardly  decide  the  other 
points  at  this  stage.) 

The  writ  ought  to  be  granted,  to  raise  the  question  whether  it  lies 
or  not,  which  the  prosecutor  cannot  otherwise  try.  In  Rex  v.  Mars- 
den,  (3  Burr.  181 2)  the  court  expressly  forebore  to  decide  whether 
or  not  they  could  grant  a  qito  zvarranto,  at  the  instance  of  a  private 
relator,  for  holding  a  market ;  and  they  gave  judgment  on  the 
ground  that  the  defendants  were  charged,  not  with  holding  a  market, 
but  with  encouraging  its  being  held.  The  passage  in  2  Selwyn  N. 
P.  1145,  (lOth  ed.)  tit.  Quo  zvarranto,  referred  to  on  the  other  side, 
is  corrected  in  Tancred  on  Quo  Warranto,  p.  14,  as  follows,  with 
respect  to  the  statement  that  "before  the  statute  of  Queen  Anne" 
(()  Anne  Ch.  20)  "a  private  person  could  not  interpose  in  quo  war- 
ranto." "This  statement  is  made  by  the  learned  writer  upon  the 
authority  of  Lord  Mansfield,  from  a  manuscript  report  of  Rex  v. 
Trclawney,  (2  Selyn.  N.  P.  1146,  s.  c.  3  P)urr.  1615).  In  the  printed 
report  in  Burrow,  the  same  view  seems  to  have  been  taken  by 
Mr.  Justice  Wilmot.  Rex  v.  Trelawney  came  before  the  court  in 
Hil.  5  Geo.  Ill,  and  consequently  preceded  the  discussion  on 
this  subject  in  Rex  v.  Marsden,  (3  Burr.  1812)  and  Rex  v.  Breton 
ct  al.  (4  lUirr.  2260)  ;  by  which  it  is  probable  that  Lord  Mansfield's 
opinion  was  changed.  For  in  East.  Term,  12  Geo.  III.  f^ex  v. 
Gregory,  (2  K.  P.  371,  4  T.  R.  240)  appears  to  have  been  decided, 
in  which  f^ord  Mansfield  expressly  asserts,  that  informations  were 
exhibited  l)y  the  coroner  before  the  9th  Anne.  The  records  of  the 
crown  office  leave  no  room  to  doubt,  that  informations  were  filed 
by  the  coroner  anterior  to  that  statute,  even  in  cases  directly  within 
Its  provisions,  which  clearly  shows,  thnt  Ihis  latter  statute  did  not 


§    3  AGAINST   I'RIVATE  CORTORATIONS   AND   PUBLIC  OFFICERS.  385 

first  introduce  these  informations,  but  only  made  some  regulations 
with  respect  to  the  prosecution  of  them."  ("2  Kyd,  ib.")  The  dis- 
cussions as  to  relator's  costs  on  quo  zvarranto  in  such  cases  as  Rex 
\.  Wallis,  (5  T.  R.  375)  and  Rex  v.  McKay,  (5  B.  &  C.  640)  would 
have  been  superfluous  if  it  had  been  clearly  established  law  that 
quo  zvarranto  does  not  lie  at  all,  at  the  instance  of  a  private  relator, 
in  a  case  not  within  the  statute  9  Anne,  Ch.  20.  Private  relators 
have  been  held  to  be  excluded,  in  cases  alleged  to  fall  under  that 
act,  because  the  word  "places"  in  the  recital  of  sect,  i,  applied  only 
to  places,  cjusdem  generis  with  those  previously  specified;  and, 
again,  rules  for  a  quo  zvarranto  information  at  the  instance  of  a 
private  relator  have  been  discharged,  in  cases  of  a  nature  as  little 
public  as  this,  because  no  such  corporation  existed  as  that  described ; 
Rex  v.  Duke  of  Bedford,  (i  Barnard,  K.  B.  242,  273,  280),  Rex 
V.  Ogden,  (34  R.  R.  375,  10  B,  &  C.  230,  233),  or  on  the  merits  of 
the  application,  as  in  Rex  v.  Attwood,  (38  R.  R.  290,  4  B.  &  Ad. 
481),  but  without  resting  the  decision  on  the  general  incompetency 
of  such  relators.  In  Rex  v.  Ramsden,  (42  R.  R.  431,  3  Ad.  & 
EI.  456,)  this  court  refused  to  grant  a  quo  zvarranto  information 
for  exercising  the  office  of  governors  and  directors  of  the  poor 
of  St.  Andrew,  Holborn ;  in  Rex  v.  Hanley,  42  R,  R.  434,  3  Ad. 
&  El.  463,  they  doubted  whether  such  information  lay  in, the  case 
of  trustees  under  a  local  act  for  certain  parochial  purposes ;  and 
in  Rex  v.  Beedle,  (42  R.  R,  437;  3  Ad.  &  El.  467),  they  granted  a 
rule  nisi  for  a  quo  zvarranto  information  for  exercising  the  office 
of  commissioner  under  a  paving  and  lighting  act.  In  none  of  these 
cases  was  a  franchise  of  the  crown  infringed ;  and  this,  probably, 
was  the  ground  of  decision  in  Rex  v.  Ramsden,  (42  R.  R.  431,  3 
Ad.  &  El.  456)  the  only  one  of  them  in  which  the  court  gave  a 
judgment  adverse  to  the  present  application.  So  in  Rex  v. 
Daubney,  (i  Bott.  pi.  347,  pi.  358,  6th  ed.)  where  a  quo  zvarranto 
information  was  moved  for  against  a  church  w^ardcn,  the  court  re- 
fused it,  "a  church  warden  not  being  such  a  public  officer  against 
Vi^hom  an  information  would  lie ;  for  it  was  no  usurpation  upon  the 
crown."  Here  the  defendant  is  wTongfully  exercising  an  office  es- 
tablished under  royal  charter,  and  is,  therefore,  usurping  upon  the 
crown.  In  Rex  v.  Gregory,  (2  R.  R.  371,  4  T.  R.  240)  where  the 
application  related  to  a  fellowship  in  Trinity  Hall,  Cambridge,  Lord 
Mansfield,  clearly  was  of  opinion  that  the  court  might  have 
granted  the  information  if  the  case  had  required  it.  Ex  parte 
Wrangham,  (2  Ves.  Jr.  609)  does  not  conflict  with  that  decision: 
the  Lord  Chancellor  there  held  only  that,  under  the  circumstances 
of  that  case,  the  visatorial  power  which  devolved  upon  the  crown 
might  fitly,  in  point  of  expediency,  be  exercised  by  the  court  of 
chancery.  In  Rex  v.  The  Masters  and  Fellows  of  St.  Catherine's 
Hall  (2  R.  R.  369,  4  T,  R.  233)  the  court  of  king's  bench  refused 


3S6  REGINA   V.    MOUSLEY.  §    3 

to  interiere,  only  because  a  visatorial  power  had  devolved  upon 
the  crown,  which  this  court  did  not  think  it  proper  to  exercise. 

(Patteson,  J. — Have  you  been  able  to  frnd  any  instance  of  a 
quo  ivarranto  for  the  purpose  of  trying  the  right  to  be  master  of  a 
hospital?) 

In  Rex  v.  Atwood  (38  R.  R.  290,  4  B.  &  Ad.  481),  this  court 
was  of  opinion  that  it  might  issue  to  try  the  right  to  be  master 
or  warden  of  a  company  in  the  city  of  London.  In  Rex  v.  The  Duke 
of  Bedford  (i  Barnard.  K.  B.  242,  273,  280)  the  conservators  of 
the  level  were  only  private  undertakings ;  yet  it  seems  that  that 
was  not  deemed  an  objection  to  the  quo  ivarranto  issuing.  And  in 
many  cases,  where  powers  of  the  same  nature  are  exercised,  there 
would  be  no  redress  against  usurpation  if  the  court  would  not 
interfere  in  this  way.  The  power  to  grant  quo  warranto  informa- 
tions according  to  the  sound  discretion  of  the  court  in  cases  other 
than  those  provided  for  by  the  statute  of  Anne  is  impliedly  recog- 
nized in  Rex  v.  Howell  (Ca.  K.  B.  temp.  Hardw.  247)  and  directly 
in  Rex  v.  Highmore   (5  B.  &  Aid.  771.) 

There  may  be  no  instance  of  such  an  information  granted 
in  a  case  strictly  private ;  but  it  cannot  be  shown  that  the  court 
has  ever  refused  so  to  interfere  where  a  franchise  derived  from  the 
crown  has  been  usurped  upon.  Nor  is  it  to  be  assumed  that  the  office 
in  this  case  is  strictly  private ;  it  has  annexed  to  it  one  public  func- 
tion at  least,  that  of  preaching  at  stated  times  in  the  parish  church. 
If  any  authorities  appear  to  raise  any  doubt  as  to  the  remedy  by  quo 
warranto  inforn^ation  in  the  case  of  a  fair,  market  or  leet,  they  may 
be  reconciled  with  the  proposition  now  contended  for  by  observing 
that,  if  the  existence  of  the  franchise  be  altogether  denied,  the 
question  may  be  tried  by  an  action,  and  quo  warranto  may  not  be 
the  proper  remedy ;  but  it  is  otherwise  where  the  franchise  clearly  ex- 
ists and  the  only  question  is  whether  or  not  it  has  been  usurped. 

(Patteson,  T- — What  franchise  do  you  say  proceeds  from  the 
crown  in  this  case?  Is  anything  established  here  which  the  founder 
might  not  have  settled  by  his  will,  without  the  aid  of  the  crown?) 

The  charter  makes  more  comprehensive  provisions  than  the  will, 
and  extends  to  property  not  com])rised  in  it.  and  creates  a  corpora- 
tion which  the  will  could  not  have  done.  The  language  of  the  court 
in  Rex  V.  Ogdcn,  (34  R.  R.  375,  10  B.  &  C.  230)  as  to  the  cases 
in  which  quo  zvarrauto  informations  mav  be  granted,  is  explained  bv 
Rex  v.  White,  (.44  R.  R.  51^.  5  Ad.  &  El.  613)  and  by  2  Roll.  Rep. 
115  (Lcroy  v.  Cusacke)  cited  in  Com.  Dig.  Quo  Warranto  where 
it  is  said  (hat  fC.  3)  "if  an  information  be  for  using  a  franchise, 
by  a  cor|>oration,  it  ought  to  be  against  the  corporation."  If  for 
usurping  to  be  a  corporation,  it  ought  to  be  against  the  particular 
persons. 

Cur.  adv.  vult 


^   3         AGAliNST   i'UlVATE  CORPORATIONS  AND   PUBLIC  OfFICERS.         38/ 

Patteson,  J.  in  this  term  (May  4th)  delivered' the  judgment  of 
the  court: 

This  case,  which  was  argued,  in  the  absence  of  my  lord,  before 
my  brothers  Coleridge,  Wightman,  and  myself,  stood  over  in  the 
consequence  of  the  pendency  before  the  House  of  Lords  of  the  case 
of  Rex  V.  Darley,  (12  CI.  &  Fin.  520)  in  which  it  was  thought 
probable  that  some  principles  of  the  law  applicable  to  the  present 
case  might  be  laid  down. 

The  case  has  not  yet  been  decided ;  but  it  cannot  affect  the  present, 
inasmuch  as  the  only  point  contended  for  in  it  is,  that  an  office  of  a 
public  nature  created  by  an  act  of  parliament  may  be  the  subject 
of  proceedings  by  writ  of  quo  zvarranto,  though  strictly  speaking 
there  be  no  usurpation  upon  the  crown.  The  law  therefore  remains 
precisely  as  it  was  before,  as  to  offices  of  a  private  nature. 

Here  the  office  is  that  of  master  of  an  hospital  founded  by  a  pri- 
vate individual  by  will,  having  no  public  duties  or  jurisdiction  of 
any  kind ;  which  was  so  clear  that  the  learned  counsel  in  arguing 
were  obliged  to  contend  that  a  provision  in  the  will,  that  the  master 
should  preach  a  certain  number  of  sermons  in  the  parish  church, 
created  a  public  duty,  it  being  obvious  that  the  founder  could  not 
confer  the  right  of  so  preaching  without  the  consent  of  the  ecclesias- 
tical authorities,  and  that  the  public  had  nothing  to  do  with  it,  or 
any  right  to  enforce  the  performance. 

it  is  true  that  a  charter  was  obtained  from  the  crown  according 
to  the  will  of  the  founder,  in  order  to  incorporate  the  members  of 
his  foundation.  But  that  alone  is  quite  immaterial,  as  the  crown 
neither  added  anything  to  the  foundation,  nor  reserved  to  itself  any 
control  over  it. 

An  act  of  parliament  was  passed  in  modern  times  to  extend  this 
foundation,  and  to  make  some  alterations  which  by  circumstances 
had  become  necessary  and  desirable ;  but  it  did  not  create  a  new 
corporation ;  nor  did  it  confer  any  jurisdiction  of  a  public  nature, 
or  enjoin  any  duty  of  the  sort. 

We  are  therefore  clearly  of  the  opinion  that  the  writ  of  quo  zvar- 
ranto is  not  applicable  to  a  case  of  this  sort.,  and  that  the  rule  for 
granting  it  must  be  discharged. 

Rule  discharged. 

See  also  Haupt  v.  Rogers,  170  Mass.  71 ;  Attorney-General  v.  Drohan, 
169  Mass.  534;   Eliason  v.  Coleman,  86  N.  Car.  235. 


388  PEOPLE  EX  REL.  TAYLOR  ET  AL.  V.  THOMPSON  ET  AL.  §    3 

7.     An  actual  user  of  the  office  must  be  shown. 
PEOPLE  EX  REL.  TAYLOR  et  al.  v.  THOMPSON  et  al. 
1837.     Supreme  Court  of  New  York.     i6  Wend.  654. 

Quo  WARRANTO.  The  attorney  general  filed  an  information  in 
the  nature  of  a  quo  zvarranto,  charging  the  defendants  with  claim- 
ing, using  and  exercising  the  liberties,  privileges  and  franchises  of 
being  a  body  politic  and  corporate ;  by  the  name  of  the  Harlem 
Bridge  Company,  and  to  have  and  maintain  a  bridge  across  the 
Harlem  River,  and  to  ask,  demand  and  take  tolls,  and  duties  from 
all  persons  using  the  bridge ;  and  also  the  liberties,  privileges  and 
franchises  of  acting  within  this  state,  towit,  at,  etc.,  as  a  corporation 
by  the  name  of  the  Harlem  Bridge  Company,  without  being  legally 
incorporated,  and  as  such  corporation  of  having  and  maintaining  a 
bridge,  etc.  To  that  portion  of  the  information  charging  the  de- 
fendants with  claiming  and  exercising  the  liberties,  privileges  and 
franchises  of  being  a  body  politic  and  Corporate,  and  of  acting  with- 
in the  state  as  a  corporation,  they  answered  that  they  never  used  such 
liberties,  privileges  and  franchises ;  and  to  that  portion  of  their  infor- 
mation charging  them  with  claiming  the  privilege  of  maintaining  a 
bridge  and  demanding  tolls,  they  set  forth  their  title  under  various 
acts  of  the  legislature.  The  attorney  general  demurred  to  the  an- 
swer, for  the  clause  that  it  did  not  me^t  the  charge  of  a  claim  on 
the  part  of  the  defendants  to  be  a  bodv  politic  and  corporate,  and 
the  defendants  joined  in  demurrer.  The  pleadings  also  presented 
the  rights  of  defendants  upon  the  merits,  upon  which  the  court 
passed  ;  but  as  the  questions  discussed  and  determined  are  not  of  gen- 
eral interest,  the  report  of  the  case  is  restricted  to  the  question  of 
pleading  as  above  presented. 

By  the  court.  Nelson,  C.  J-  The  demurrer  of  the  attorney  gen- 
eral to  so  much  of  the  plea  as  professes  to  answer  the  first  count  of 
the  information,  raises  the  question  whether,  under  the  provisions 
of  the  revised  statutes  authorizing  an  information  in  the  nature  of  a 
auo  7varranto,  2  R.  S.  581,  §  28,  the  defendants  are  bound  to  answer 
specifically  the  averment  that  they  claim  to  use  and  exercise  a  fran- 
chise, within  this  state,  without  any  warrant  or  grant  for  that  pur- 
pose. If  they  are  obliged  to  answer  the  charge  of  a  mere  claim  to 
exercise  corporate  privileges,  disconnected  from  any  allegation  of 
user,  then  undoubtedly,  the  j)lea  is  bad,  for  it  contains  only  a  denial 
of  the  user.  The  defendants,  if  so  bound  to  answer,  should  liave 
set  forth  title,  or  disclaimed.  The  language  of  the  statute  so  far  as 
concerns  this  case,  is  as  follows:  "an  information  in  the  nature  of  a 
quo  7i'arranto  may  be  filed,  etc.,  where  any  person  shall  usurp,  in- 
trude into  or  unlawfully  hold  or  exercise  any  pulilic  office,  civil  or 
iiiilitarv  or  any  franchise  within  this  state";  or  "where  anv  associa- 


§    3  AGAINST   PRIVATE   CORPORATIONS   AND   PUBLIC   OFFICERS.  389 

tion  or  number  of  persons  shall  act  within  this  state  as  a  corpora- 
tion, without  being  legally  incorporated."  The  lirst  clause  seems 
obviously  to  reciuire  something  beyond  a  claim  to  an  office,  or  to  the 
exercise  of  a  franchise,  to  authorize  the  institution  of  proceedmgs; 
and  the  last  confines  the  proceedings  expressly  to  the  case  of  per- 
sons acting  as  a  corporation.  To  "usurp,  intrude  into  or  unlawfully 
hold  or  exercise",  an  office  or  franchise,  which  last  term  may  include 
corporate  powers,  means  to  take  possession  of  the  office  or  franchise 
without  right,  or  unlawfully  to  hold  or  use  the  same  after  posses- 
sion has  been  rightfully  or  wrongfully  acquired. 

The  w^ords  of  the  statute  were  taken  from  the  9th  Anne,  ch.  20, 
§  4,  under  which  act  it  has  been  repeatedly  determined  there  must 
be  a  user  or  possession  of  the  office  or  franchise,  to  authorize  the 
information,  and  that  a  mere  claim  is  insufficient.  Rex  v.  Ponsonbv, 
I  Ves.  Jr.  I  ;  Rex  v.  Whitwell,  5  T.  R.  85;  Bull.  N.  P.  211  ;  4  East 
337 ;  3  i'^c.  Abr.  645  ;  Wilcocks  on  Cor.  462,  pi.  254-5-6 ;  Angell  on 
Cor.  486.  It  was  insisted  on  the  argument  by  the  counsel  for  the 
people,  that  this  was  only  a  rule  of  practice  which  the  king's,  bench 
had  established  and  applied  on  a  motion  for  leave  to  file  an  infor- 
mation. An  examination  of  the  authorities  will  show  that  such  a 
proposition  cannot  be  maintained.  The  case  of  Rex  v.  Ponsonby, 
V  hich  is  a  leading  one,  underwent  very  full  discussion.  It  originated 
in  the  K.  B.  in  Ireland  (the  statute  there  being  a  copy  of  9  Anne), 
and  came  before  the  K.  B.  in  England,  on  error  in  1755.  wdiere  the 
judgment  was  reversed,  which  reversal  was  afterwards  sustained 
in  the  house  of  lords.  The  information  was  filed  against  seven  per- 
sons, charging  them  with  usurping  the  office  of  free  burgesses,  of 
the  corporation  of  Newtown.  The  question  whether  it  would  lie 
against  two  of  them,  who,  though  elected,  had  not  been  admitted 
or  sworn  in,  came  up  on  the  pleadings.  Chief  Justice  Rider,  who 
delivered  the  opinion  of  the  court  in  error,  states  one  question  to 
be,  "whether  it  (the  information)  lies  against  the  non-acting  bur- 
gesses;" and  adds  "it  clearly  cannot,  upon  this  ground,  that  under 
the  words  of  the  statute,  there  must  be  usurpation,  intrusion  or  un- 
lawful holding.  Now,  claiming,  which  only  appears  against  them 
(they  had  claimed  in  their  plea  to  be  admitted,  and  sworn  in),  can 
by  no  construction  be  taken  to  amount  to  any  of  these,  and  it  would 
be  strange  to  imagine  the  statute  intended  ever  to  prevent  the  as- 
serting or  claiming  a  right".  "The  practice  now  generally",  he  says, 
"is  to  have  an  affidavit  of  some  act  of  usurpation,  upon  application 
to  the  court  for  leave  to  file  an  information."  This  practice,  as  ap- 
pears from  the  above  authority,  is  not  an  arbitrary  regulation  of  the 
court ;  it  is  the  evidence  of  a  fact  before  the  institution  of  the  pro- 
ceedings to  bring  the  case  within  the  provisions  of  the  statute ;  and 
without  the  existence  or  proof  of  Avhich.  those  proceedings  would  be 
inefifectual  if  permitted.  It  is  the  establishment  of  a  prima  facie  case 
for  the  interference  of  a  court,  and  which  if  sustained  upon  a  mere 


390  COMMONWEALTH   V.   DEARBORN    ET   AL.  §    3 

formal  and  deliberate  litigation,  will  justify  a  judgment  of  ouster. 
All  the  precedents  in  the  books  support  this  view.  I  have  exam- 
ined some  thirty,  every  one  of  which  charge  that  the  defendant  or 
defendants  did  use  and  exercise,  and  from,  etc.,  to  the  exhibiting  of 
the  information,  hath  or  have  used  and  exercised,  etc.  The  48th 
section  of  the  statute,  2  R.  S.  595,  may  also  be  referred  to,  which 
l)rescribes  the  judgment  in  case  of  conviction.  If  the  defendant  be 
"found  or  adjudged  guilty  of  usurping  or  intruding  into,  or  unlaw- 
fully holding  or  exercising  any  office,  franchise  or  privilege,  judg- 
ment shall  be  rendered  that  such  defendant  be  ousted,  and  altogether 
excluded  from  such  office,  franchise  or  privilege",  etc.  '  It  would 
seem  something  like  an  absurdity  to  give  judgment  of  ouster  against 
a  person,  from  an  office  which  he  never  was  in,  or  from  a  franchise 
which  he  never  held  or  used.  If  the  above  view  be  correct,  then  the 
first  count  in  the  information  is  fully  answered  by  the  plea.  It  de- 
nies the  allegation  of  using  and  exercising  the  franchises  and  privi- 
leges as  a  corporation,  which  constitutes  the  gravamen  of  the  charge. 
If  this  is  not  admitted  on  the  record,  or  proved  in  case  of  denial,  no 
judgment  can  be  rendered  against  the  defendants.  It  contains  the 
very  essence  of  the  complaint  under  the  statute. 
Judgment  for  defendants. 

See  also  Reg.  v.  Pepper,  7  A.  &  E.  745;  Reg.  v.  Archdall,  8  A.  &  E.  281. 


8.     Will  not  issue  against  mere  servants. 

COMMONWEALTH  w  DEARBORN  et  al. 

t8i8.     Supreme  Judicial  Court  of  Massachusetts.     15   Mass. 

125- 

This  was  an  information  in  the  nature  of  quo  warranto,  filed  by 
Ihe  Attorney  and  Solicitor  General  in  behalf  of  the  Commonwealth, 
alleging  that  the  defendants,  for  the  space  of  three  months  before 
the  filing  of  the  information,  had  used  and  exercised  and  still  did 
use  and  exercise,  the  office,  liberty  and  franchise,  of  managers  of  a 
lottery,  granted  by  the  legislature  to  the  proprietors  of  Kcnnebeck 
Bridge;  which  office,  etc.,  they  are  charged  with  having  usurped 
upon  the  government  of  the  Commonwealth ;  and  thereupon  process 
is  i)raycd  against  them,  that  they  may  be  held  to  answer  to  the  com- 
monwealth, by  what  warrant  they  claim  to  hold,  use  and  exercise 
and  enjoy,  the  said  office,  liberty  an<l  fratichisc.     *     *     * 

The  coimsel  on  both  sides  lieing  i^rcscnt  at  the  following  Novem- 
ber Term  in  Essex,  the  question  whether  the  information  lav  was 
arpfiK-d  at  much  length  bv  ihcm  and  it  was  afterwards  determined 


i^    3         AGAINST   PRIVATE  CORPORATIONS  AND  PUBLIC  OFFICERS.         39I 

by  the  court,  that  the  defendants  as  managers  of  a  lottery  granted 
to  a  corporation,  and  appointed  to  the  trust  by  the  corporation,  were 
not  such  officers  as  were  Hable  to  the  process  which  had  been  insti- 
tvited  in  this  case.  They  were  the  private  officers  or  servants  of  the 
corporation,  and  removable  by  it  at  pleasure,  or  at  least  for  good 
cause.  The  only  effect  of  a  judgment  against  the  defendants  upon 
this  information  would  be  their  removal  from  office.  But  such  a 
judgment  would  be  nugatory,  for  the  corporation  might  immediately 
reinstate  them.  Those  against  whom  such  an  information  lies  must 
claim  to  exercise  some  public  office  or  authority.  The  defendants 
were  accordingly  discharged. 

See  also  Philips  v.  Commonwealth,  98  Pa.  St.  394,  professor  in  a  col- 
lege ;  State  v.  Cronan,  23  Nev.  437,  superintendent  of  a  corporation ;  Com- 
monwealth V.  Murray,  11  S.  &  R.  (Pa.)  73,  minister  of  a  church;  People 
V.   Hills,   I   Lans.    (N.   Y.)    202,   secretary-treasurer  of  a  railroad  company. 


9.     Relator's  interest  where  the  dissolution  of  a   corporation  is 
sought. 

MURPHY  V.  FARMERS'  BANK  OF  SCHUYLKILL  COUNTY. 

1853.     Supreme  Court  of  Pennsylvania.     20  Pa.  St.  415. 

B.  H.  Brewster  &  Cumming  for  the  respondent,  in  support  of  the 
motion  to  quash. — It  w-as  observed  that  the  relator  was  not  con- 
nected with  the  bank ;  that  he  was  not  a  stockholder  or  officer, 
debtor  or  creditor  of  the  bank,  and  was  not  sustained  by  the  Com- 
monwealth. It  was  stated  that  the  English  Courts,  in  construing 
the  statutes  of  4  &  5  W.  &  M.,  9  Anne,  and  32  Geo.  Ill,  have  re- 
fused the  writ  of  quo  warranto  upon  the  relation  of  an  intruder, 
when  seeking  the  forfeiture  of  such  a  charter  as  the  one  in  question, 
and  have  confined  such  writs  to  "cases  affecting  rights  as  between 
party  and  party".  3  Burr.  317;  Rex  v.  Williams,  Selwyn,  N.  P. 
1157,  Com.  Dig.  C.  3,  tit.  Quo  warranto;  1  W.  Bl.  187.  In  the  case 
in  2  Burr.  869,  Lord  MansfiekUsaid,  that  the  "statute  of  9  Anne  was 
calculated  to  operate  only  against  individuals  usurping  offices  or 
franchises,  and  not  against  any  corporation  itself  as  a  body.  Though 
the  court  wdll  grant  a  quo  zvarranto  information,  at  the  instance  of 
a  relator,  against  a  member  of  a  corporation,  on  grounds  affecting 
his  individual  title,  although  the  same  objections  apply  to  the  title  of 
every  member,  5  Ad.  &  EL  613;  yet  an  information  for  dissolving  a 
corporation,  or  of  seizing  its  franchises,  cannot  be  prosecuted  but 
by  authority  of  the  crown,  or  of  the  commonwealth,  or  by  a  public 
officer  in  its  behalf.     10  B.  &  C.  230;  ii  Ad.  &  El.  949;  2  B.  &  A.. 


39-2  .MURPHY  V.  farmers'  BAXK  OF  SCHUYLKILL  COUNTY.  §    3 

482;  I  T.  R.  3;  Bac.  Abr.  Information,  D;  5  Mass.  230;  Common- 
wealth V.  Union  Fire  Insurance  Company,  16  Serg.  &  R.  140,  144-5  r 
I  Penna.  Rep.  426 ;  7  Barr.  34 ;  Com.  v.  Burrell,  i  AlcCord  35  ;  id. 
52;  4  Gill  &  J.  !;=:<--*■ 

The  opinion  of  the  court  was  delivered  April  4,  by 

Woodward,  J.  The  principal  reason  assigned  for  the  motion  to 
quash  this  writ  of  quo  ivarranto,  is,  that  the  suggestion  is  at  the  in- 
stance of  a  private  relator,  instead  of  the  attorney  general.  Tl>e  re- 
spondent is  a  corporation,  deriving  its  existence  from  legislation 
enacted  in  the  forms  of  the  constitution,  and  the  object  of  the  relator 
is  to  put  it  out  of  existence — to  declare  its  franchises  forfeited  to 
the  commonwealth.  He  is  not  a  stockholder  in  the  bank,  is  not  a 
creditor,  and  claims  no  office  or  other  private  right  in  the  corpora- 
tion. Essentially  therefore  this  is  a  public  prosecution  of  the  bank, 
tl.ough  set  on  foot  by  an  individual,  and  has  for  its  object  the  re- 
cover}- of  a  forfeited  franchise,  and  not  the  redress  of  a  private 
grievance.     *     *     * 

The  question  now  raised  is.  whether  such  a  prosecution  can  be 
conducted  in  this  court  at  the  suggestion  of  a  private  relator.  This 
question  depends  on  the  construction  of  the  act  of  June  14th.  1836, 
for,  independently  of  that  act,  it  is  beyond  dispute  that  the  Com- 
monwealth only  could  have  quo  zvarranfo  for  the  purposes  of  the 
present  proceeding.     *     *     * 

(The  court  after  discussing  the  force  and  efifect  of  the  Pennsyl- 
vania Statute  conferring  concurrent  jurisdiction  upon  the  several 
courts  of  common  pleas  with  the  supreme  court  in  issuing  writs  of 
quo  warranto,  and  holding  that,  the  substance  of  the  statute  of  Anne 
had  been  adopted  as  a  part  of  the  common  law,  of  the  state,  con- 
tinues), 

*  *  *  These  words  have  been  the  subject  of  judicial  decision, 
and  the  authorities  show  that  they  do  not  give  a  private  relator  the 
writ  of  quo  warranto  in  a  case  of  public  prerogative  involving  no  in- 
dividual grievance.  On  this  point  the  authorities  are  full,  direct  and 
harmonious.  The  usurpation  of  an  office,  established  by  the  consti- 
tution, under  color  of  an  executive  appointment,  and  the  abuse  of  a 
public  francliise  under  color  of  a  legislative  grant,  are  public  wrongs, 
and  not  private  injuries,  and  the  remedv  bv  quo  warrauto.  in  this 
court  at  least,  must  be  on  the  suggestion  of  the  attorney  general, 
or  some  authorized  agent  of  the  Commonwealth. 

For  the  authorities  I  refer  myself  to  those  cited  in  the  argument 
of  the  respondent's  counsel.  They  establish  this  as  the  uniform 
construction  in  questions  involving  the  existence  of  a  corporation. 
Tn  questions  involving  merely  the  administration  of  corporate  func- 
liotis  or  duties  which  touch  only  individual  rights,  such  as  the  elec- 
tion of  officers,  admission  of  a  corporate  officer,  or  member,  and  the 
like,  the  writ  may  issue  at  the  suit  of  the  attorney  general,  or  of  any 
person  or  persons  desiring  to  prosecute  the  same. 


§    3         AGAINST   PRIVATE  CORPORATIONS  AND  PUBLIC  OFFICERS.         393 

What  is  a  corporation?  A  franchise.  And  Blackstone  defines  a 
franchise  to  be  a  part  of  the  royal  prerogative  existing  in  the  hands 
of  a  subject.  The  sovereignty  of  every  state  must  be  lodged  some- 
where. Limited  by  such  concessions  as  popular  violence  has  from 
time  to  time  wrung  from  reluctant  monarchs,  it  resides  in  England 
in  the  crown.  In  Pennsylvania,  it  resides  in  the  whole  mass  of  the 
people,  and  the  three  co-ordinate  departments  of  government  are  the 
trustees  appointed  by  the  people  for  the- exercise  of  so  much  of  their 
sovereignty  as  they  have  not,  by  the  bill  of  rights,  denied  them,  nor 
by  the  constitution  of  the  United  States  yielded  to  the  general  gov- 
ernment. The  legislature  of  Pennsylvania  may  establish  a  corpora- 
tion, that  is,  grant  out  a  part  of  the  sovereignty  of  the  state,  because, 
being  a  general  trustee  for  the  people,  and  not  forbidden,  they  are 
qualified  to  do  so.  The  general  government  being  a  government  of 
derivative  powers.  Congress  cannot  establish  a  corporation,  because 
the  power  to  do  so  is  not  granted.  Our  legislature  can  because  the 
power  is  not  withheld.  A  corporation  then  exists  in  Pennsylvania 
by  virtue  of  the  constitutional  exercise  of  the  sovereign  power.  Its 
existence  is  proof  of  the  public  will,  which  is  nothing  else  than  the 
will  of  the  majority.  Can  one  man  so  employ  the  departments  of 
the  government  as  to  tear  down  the  fabric  of  a  majority?  Regard- 
ing the  judiciary  as  one  of  the  trustees  of  the  sovereignty  of  the 
people,'  by  which  I  mean  the  whole  people,  how  can  its  functions  be 
called  into  exercise  against  the  existence  of  a  public  institution,  ex- 
cept upon  the  suggestion  of  some  agent  of  the  whole  people?  If 
they  may,  if  individual  caprice,  passion,  prejudice  or  interest  may  use 
the  judicial  arm  of  the  government  to  overthrow  what  the  legislative 
or  executive  arms  have  erected,  the  sovereignty  of  the  majority  is 
extinguished,  and  the  departments  of  the  government,  intended  to 
work  in  harmony,  are  brought  into  fatal  conflict.  A  house  divided 
against  itself  cannot  stand,  and  no  more  can  a  state.  If  quo  zvar- 
ranto  be  given  to  individuals  to  dissolve  corporations,  power  will 
cease  to  steal  from  the  many  to  the  few  for  here  will  be  a  transfer  of 
it  bodily.  With  a  corrupt  judiciary,  which  the  history  of  other 
countries  teaches  us  is  not  an  impossible  supposition,  acting  as  the 
instrument  of  private  passions,  any  institution  established  by  the  im- 
mediate representatives  of  the  people,  and  existing  by  will  and  con- 
sent of  the  people,  and  for  their  convenience  and  benefit,  may  be 
frustrated  without  appeal  or  recourse. 

These  are  general  views  which  harmonize  with  the  doctrine  of  the 
cases.  And,  therefore,  whilst  I  recognize  the  right  of  any  relator 
to  have  a  quo  warranto  in  the  supreme  court  who  is  desirous  to 
prosecute  the  same  to  redress  any  private  grievance  that  falls  within 
that  remedy,  I  deny  the  right  of  any  party  except  the  attorney  gen- 
eral, or  other  officer  of  the  commonwealth,  to  sue  for  it  to  dissolve 
a  corporation.  I  do  not  say  what  may  be  the  proper  construction  of 
the  words/  copied  twice  into  the  second  section  of  the  act  of  1836 


394  MURPHY  V.   FARMERS'  BANK  OF  SCHUYLKILL  COUNTY.  §    3 

from  the  statute  of  Anne.  We  have  seen  that  they  apply  exclusively 
to  the  common  pleas  and  as  a  statutory  provision  have  no  applica- 
tion to  the  supreme  court.  The  construction  of  them,  therefore  as  a 
part  of  the  act  of  1836,  is  not  involved  here.  When  a  case  comes 
up  from  the  common  pleas  requiring  them  to  be  construed,  it  will 
be  time  enough  to  consider  whether  they  have  acquired  any  new  sig- 
nificance or  force  by  their  Pennsylvania  enactment. 

Another  question  is  made  here  which  deserves  to  be  noticed,  be- 
cause it  touches  the  practice  in  cases  like  the  present.  It  is  said  the 
writ  can  only  be  issued  after  a  rule  to  show  cause ;  and  for  that 
Jones'  case  in  2d  Jones,  is  an  undoubted  authority.  The  statute  of 
Anne  has  the  words  by  the  leave  of  the  court,  and  the  fifth  section 
of  the  act  of  1836,  applicable  alike  to  the  Supreme  Court  and  the 
Common  Pleas,  provides  that  tlie  writ  may  issue  with  the  leave 
of  the  court  in  term  time,  or  of  a  judge  in  vacation.  This  is  suffi- 
ciently complied  with  by  the  motion  which  is  made,  and  the  allow- 
ance of  a  writ  without  a  hearing.  But  all  analogy  and  principle  show 
that  the  party  respondent  must  have  a  hearing  before  he  is  put  to 
answer.  This  we  allow  him  in  a  motion  to  quash  the  writ.  And  not- 
withstanding what  was  said  in  Jones'  case,  we  are  inclined  to  sus- 
tain this  practice,  and  dispense  with  the  preliminary  rule.  It  is  a 
matter  of  form  and  not  of  substance ;  so  that  the  respondent  is  secure 
of  his  preliminary  hearing,  it  matters  little  whether  it  be  on  a  rule  to 
show  cause,  or  the  less  cumbrous  motion  to  quash. 

And  now,  April  4,  1853,  this  cause  having  been  fully  heard,  it  is 
considered  and  adjudged,  that  the  relator,  Michael  Murphy,  has 
shown  no  right  or  title  to  maintain  the  information  in  the  name  of 
the  Commonwealth ;  and  that  the  same  be  and  is  hereby  quashed, 
and  wholly  taken  for  naught ;  and  that  the  relator  pay  to  the  defend- 
ants their  lawful  costs  in  this  behalf  expended. 

As  to  form  of  information  when  filed  against  a  private  corporation,  see 
State  V.  Cincinnati,  etc.,  Co.,  18  Oh.  St.  262. 


§    4  'J' II 12  PAKTIES.  "  395 

Section  4. — The  Parties. 

I.     State  or  peojjle  as  plaintiff. 

WALLACE  V.  ANDERSON. 
1820.     Supreme  Court  of  the  United  States.     5  Wheaton  291. 

Error  to  the  circuit  court  of  Ohio. 

This  was  an  information  for  a  quo  ivarranto,  brought  to  try  the 
title  of  the  defendant  to  the  office  of  principal  surveyor  of  the  Vir- 
ginia Military  bounty  lands  north  of  the  river  Ohio,  and  betv^een 
the  rivers  Scioto  and  Little  Miami.  The  defendant  had  been  ap- 
pointed to  the  office  by  the  state  of  Virginia  and  continued  to  exer- 
cise his  duties  until  the  year  18 18,  during  all  which  time  his  official 
acts  were  recognized  by  the  United  States.  In  that  year  he  was 
removed  by  the  governor,  and  council  of  Virginia,  and  the  plaintiff 
appointed  in  his  place.  The  writ  was  brought,  by  consent  of  par- 
ties, to  try  the  title  to  the  office,  waiving  all  questions  of  form  and 
of  jurisdiction.  Judgment  was  given  in  the  court  below  for  the  de- 
fendant, and  the  case  was  brought  by  writ  of  error  into  this  court. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court, 
that  a  writ  of  quo  ivarranto  could  not  be  maintained  except  at  the 
instance  of  the  government,  and  as  this  writ  was  issued  by  a  private 
individual,  without  the  authority  of  the  government,  it  could  not  be 
sustained,  whatever  might  be  the  right  of  the  prosecutor,  or  of  the 
person  claiming  to  exercise  the  office  in  question.  The  information 
must  therefore  be  dismissed. 

Judgment  reversed. 

Judgment. — This  case  comes  on  to  be  heard  on  the  transcript  of 
the  record  of  the  Circuit  Court  for  the  District  of  Ohio,  and  was 
argued  by  counsel.  On  consideration  whereof,  this  court  is  of  the 
opinion  that  no  writ  of  quo  warranto  can  be  maintained,  but  at  the 
instance  of  the  government ;  and  as  this  writ  is  a  writ  issued  by  an 
individual  without  the  authority  of  the  government,  it  is  the  opinion 
of  this  court  that  the  same  cannot  be  sustained,  whatever  may  be  the 
right  of  that  individual,  or  of  the  person  who  claims  to  exercise  the 
office,  to  try  the  title  to  which  the  writ  is  brought.  It  is  therefore 
the  opinion  of  this  court,  that  the  judgment  of  the  circuit  court 
ought  to  be  reversed  and  the  cause  remanded  to  that  court,  with  di- 
rections to  dismiss  the  information  because  it  is  not  filed  at  the  in- 
stance of  the  United  States. 


396  STATE  EX  REL.  GILES  V.   HARDIK.  §    4 

STATE  EX  REL.  GILES  v.  HARDIE. 
1840.     Supreme  Court  of  North  Carolina.     2.t^  N.  C.  42. 

(Information  in  quo  zvarranto  filed  by  the  solicitor  for  the  state 
charging  respondent  with  unlawfully  using  and  exercising  the  office 
of  sheriff  of  Rowan  County  and  alleging  specifically  that  at  the  time 
of  the  election  of  said  respondent  to  the  office  of  sheriff  he  was  not 
possessed  of  a  freehold  of  one  hundred  acres  in  fee  simple  as  pro- 
vided by  law.  Respondent  pleaded  to  the  information  denying  spe- 
cifically the  charges  therein  contained.    Demurrer.) 

Counsel  for  defendant  contended  that  the  whole  proceeding  ought 
to  have  been  dismissed,  because  the  defendant  could  not  be  called  to 
answer  the  information : 

1st.  The  act  concerning  writs  of  quo  zvarranto  and  mandamus, 
I  R.  S.,  ch.  97.  though  general  in  its  terms,  is  not  applicable  to  the 
office  of  sheriff. 

2d.  If  the  office  of  sheriff  be  embraced  in  the  act,  or  must  be 
construed  to  be  within  its  provisions,  then  the  proceeding,  being  a 
criminal  one,  is  prohibited  by  the  eighth  section  of  the  Bill  of  Rights, 
and  the  legislature  had  no  right  to  pass  the  act.  That  the  proceeding 
is  of  a  criminal  nature,  see  2  Hawk.  PI.  Cro.,  ch.  26,  sec.  16;  I  Tre- 
main's  Pleas,  253 :  6  Wentworth,  28  cf  seq. :  Attorney  General  v. 
Utica  Insurance  Company,  3  Johns.  Ch.  Rep.  371. 

3d.  The  information  is  fatally  defective,  because  it  does  not  show 
upon  its  face  that  it  was  filed  by  I'eave  of  court.  An  information  in 
England  does  not  show  this ;  but  there  is  reason  for  a  difference 
there  and  here.  There,  the  power  to  file  an  information  is  not  given 
by  statute,  but  is  only  regulated  by  it ;  but,  in  this  state  the  power  is 
given  by  the  statute  and  none  exists  in  the  solicitor  without  it. 

4th.  The  information  is  totally  defective  in  fomi  and  substance. 
See  6  W'entworth's  Pleas.  28.  for  a  proper  form. 

5tH.  The  judge  erred  in  saying  that  the  pleas  could  not  be  sus- 
tained, although  the  county  court  had  decided  the  question.     *     *     * 

The  Attorney  General  and  r>arringcr  for  the  state,  contended  that 
the  act  applied  to  every  office.  Writs  of  Mandamus  a^nd  quo  zvar- 
ranto were  writs  known  to  the  common  law ;  and  the  statute  of  9 
Anne,  and  4  &  5  Will.,  and  Mary,  only  regulated  them.  Oiu"  act 
embraces  the  office  of  sheriff  in  its  terms.  See  Bac.  Abr.  tit.  Infor- 
mation, letter  D:  Bull.  N.  P.  210,  212;  People  v.  Van  Slikc.  4 
Cowcn's  Rep.  297. 

2(1.  The  argument  that  the  act  is  miconstitutional  is  based  upon 
the  supposition  that  the  proceeding  is  a  criminal  one;  but  it  has  al- 
ways been  regarded  as  a  civil  proceeding,  thougli  in  some  measure 
in  tlif  nature  r)f  a  criminal  one.  4  Cowen's  Rep.  100;  note  A  in 
People  v.  Richardson;  People  v.  Clerk,  4  Cow.  Tlvp.  9S;  IS  Johns. 
Rep.  3«7- 


^    4  THE  PARTIES.  397 

3d.  To  the  objection  that  the  information  does  not  show  that  it 
was  filed  by  leave  of  the  court,  the  reply  is,  that  it  was  unnecessary ; 
i)nd  if  it  were,  the  court's  entertaining  and  acting  upon  it  shows  that 
it  had  its  sanction. 

4th.  As  to  the  informality  of  the  proceeding  the  defendant  is  too 
late  to  avail  himself  of  it  after  plea.  4  Term.  Rep.  276;  Com.  Dig. 
tit.  Quo  Warranto;  3  Term.  Rep.  596;  599,  note  A ;  if  an  informa- 
tion be  informal,  the  proper  motion  is  to  quash  it ;  but  after  plea  it 
cannot  be  quashed.  4  Burr.  2297.  The  defendant  had  no  right  to 
plead  double.    7  Eng.  Com.  Law  Rep.  254.     *     *     * 

Gaston,  J.,  delivered  the  opinion  of  the  court.  (Omitting  that 
portion  of  the  opinion  respecting  the  right  of  the  county  court  to 
render  a  conclusive  judgment  in  the  case  of  contested  elections.) 

*  *  *  It  is  insisted,  nevertheless,  on  the  part  of  the  appellant, 
that  if  the  plea  in  question  be  bad  in  substance,  nevertheless  the  judg- 
ment on  the  demurrer  is  erroneous,  because  the  information  is  alto- 
gether illegal,  or  if  legal,  is  wholly  insufficient.  It  may  be  doubted 
whether  these  grave  inquiries  are  fit  to  be  considered  now,  when  the 
question  before  us  is  on  the  interlocutory  judgment  overruling  the 
plea.  But  as  they  have  been  argued  on  both  sides,  and  been  fully  con- 
sidered, and  as  our  minds  are  quite  made  up  on  them,  we  have  no 
hesitation  in  declaring  our  opinion. 

It  is  objected  in  the  first  place,  that  an  information  of  the  kind 
before  us,  is  utterly  prohibited  by  the  eighth  section  of  our  Bill  of 
Rights,  which  declares  that  "no  freeman  shall  be  put  to  answer  any 
criminal  charge  but  by  indictment,  presentment  or  impeachment." 
The  enquiry  is,  whether  the  information  in  question  be,  within  the 
meaning  of  the  Bill  of  Rights,  a  "criminal  charge".  In  every  well 
regulated  government  there  must  be  some  mode  by  which  to  put 
down  the  usurpation  by  unauthorized  individuals  of  public  power. 
In  the  country  of  our  ancestors,  and  in  ancient  times,  when  any  of 
the  offices  or  franchises  appertaining  to  sovereignty,  and  therefore 
called  royal,  were  supposed  to  be  held  or  exercised  without  lawful 
authority,  the  remedy  was  by  suing  out  the  writ  of  quo  zvarranto, 
to  enquire  by  w^hat  warrant  the  supposed  usurper  supported  his 
claim,  in  order  to  determine  the  right  thereto.  This  was  said  to  be 
in  the  nature  of  a  writ  of  right,  for  the  king,  and  from  what  we  have 
seen  of  the  pleadings  in  it,  bore  little  or  no  resemblance  to  a  crim- 
inal prosecution.  See  Rastell's  entries  Quo  Warranto.  Indeed  Mr. 
Justice  Wilmot,  in  Rex  v.  Marsden,  3  Burr.  1817,  declares  positively 
that  it  is  not  a  criminal  prosecution,  but  a  civil  writ  at  the  suit  of 
the  crown,  though  Chancellor  Kent  in  the  People  v.  The  Utica  In- 
surance Company,  2  Johns.  Ch.  117,  speaks  of  it  as  a  criminal  pro- 
ceeding. Be  this  as  it  may,  the  remedy  certainly  resembled,  if  in 
truth  it  were  not  a  real  action ;  and,  like  other  actions  of  that  family, 
was  subjected  in  its  prosecution  to  inconvenient  delays.  On  this 
account,  like  most  real  actions,  in  process  of  time  it  became  much 


398  STATE  EX  REL.  GILES  V.   IIARDIE.  §    4 

disused,  and  its  place  was  supplied  by  "an  information  in  the  nature 
of  a  quo  i^'arranto."  Originally  this  was  a  criminal  proceeding.  In 
it  the  usurpation  was  charged  as  an  offense,  and  the  offender,  upon 
conviction,  was  liable  to  be  punished  by  fine  and  imprisonment. 
Such,  however,  were  the  conveniences  attending  the  information,  as 
a  mode  of  trying  the  mere  question  of  right  to  the  office  or  fran- 
chise that  although  it  never  entirely  lost  its  form  as  a  criminal  pro- 
ceeding, it  was  so  modeled  as  to  become  substantially  a  civil  action. 
A  fine,  indeed,  was  imposed  upon  conviction ;  but  it  was  nominal 
only — no  real  punishment  was  inflicted — and  it  became,  before  our 
revolution,  the  general  civil  remedy,  for  asserting  and  trying  the 
right,  in  order  to  seize  the  franchise,  or  office,  or  to  oust  the  wrong- 
ful possessor.  See  3  Bl,  Com.  262-3  ;  Rex  v.  Francis,  2  Term.  484 ; 
Com.  v.  Brown,  i  Serg.  &  Rawl.  385  ;  People  v.  Utica  Insurance  Co.. 
15  Johns.  386. 

Besides  this  peculiar  information,  well  known  as  the  informatioi> 
in  the  nature  of  quo  zvarranto,  there  was  a  mode  of  prosecution  for 
the  punishment  of  crimes  by  "information."  This  was,  by  a  sug- 
gestion or  charge,  drawn  up  in  form,  and  filed  on  record  by  the 
King's  Attorney  General,  or  by  his  coroner  or  master  of  the  crown 
office,  in  the  court  of  King's  Bench ;  and  was  deemed  sufficient  in 
every  case  not  capital,  to  call  every  man  to  answer  to  the  offense 
therein  charged.  There  could  be  no  doubt  but  that  this  mode  of 
criminal  prosecution  was  as  ancient  as  the  common  law  itself,  but  the 
tyrannous  use  made  of  it  in  high  prerogative  times,  especially  after 
jurisdiction  of  criminal  prosecutions  by  information  was  extended 
to  other  tribunals  besides  the  court  of  King's  Bench,  justly  subjected 
it  to  the  reprobation  of  the  friends  to  freedom.  The  framers  of 
our  Bill  of  Rights  were  not  school  men  dealing  in  metaphysical  ab- 
stractions, and  busied  about  technical  forms,  but  practical  statesmen 
guarding  against  real  abuses  of  power,  and  securing  the  substantial 
rights  of  freemen.  They  intended  to  prohibit  this  mode  of  prosecu- 
tion for  crimes,  and  to  throw  around  the  object  of  penal  visitation 
the  protection  either  of  a  grand  jury,  or  of  an  enquiry  by  the  im- 
peaching body — before  he  could  be  required  to  plead  to  a  criminal 
accusation.  Such  is  the  purpose  of  the  eighth  section  of  the  Bill  of 
Rights ;  and  accordingly,  we  find  it  connected  with  a  number  of  pro- 
visions from  the  7th  to  the  loth  inclusively,  in  which  are  embodied 
the  securities  for  a  fair  hearing,  full  defense,  impartial  trial,  and  the 
administration  of  justice  in  mercy  to  all  sought  to  be  convicted  and 
punished  because  of  public  offenses.  The  proceeding  before  us  is 
carried  on  dk'crso  intuitu,  and  to  hold  it  prohibited  by  the  Bill  of 
Rights,  would  be  to  sacrifice  substance  to  mere  form.  If,  indeed  it 
shotiUl  ever  be  attempted  in  informations  of  this  character,  to  im- 
pose a  real  fine,  or  to  inflict  any  other  ])unislimcnt,  so  as  to  make 
thcni  in  c-ffcct  criminal  prosecutions,  such  a(Uni])ts  would  fall  before 


§    4  THE  PARTIES.  399 

the  explicit  prohibitions  of  the  section  of  the  Bill  of  Rights  now 
needlessly  invoked. 

In  the  next  place  it  is  objected  that  the  present  information  pur- 
ports to  be  framed  in  conformity  to  the  provisions  of  our  act,  of 
1836,  "concerning-  writs  of  quo  zvarranto  and  mandamus"  (i  R.  S., 
ch.  97)  ;  but  on  a  fair  examination  of  that  act,  it  will  be  found  not 
to  warrant  this  proceeding.  It  is  admitted  that  the  words  of  the  act 
are  sufficiently  broad  to  take  in  the  case,  for  they  declare  it  lawful 
for  the  attorney  general  or  solicitors  of  the  state,  where  any  person 
shall  hold  or  execute  any  office,  or  franchise  unlawfully,  to  exhibit 
with  the  leave  of  the  court,  an  information  in  the  nature  of  a  qtio 
warranto,  at  the  relation  of  any  person  desiring  to  prosecute  the 
same.  But  it  is  argued  these  words  must  be  taken  with  some  quali- 
fication. The  act  has  been  modeled  after  the  English  statute  of  9th 
Anne,  which,  in  terms,  is  confined  to  informations  respecting  the  dis- 
puted offices  and  franchises  of  boroughs  and  corporations ;  and  al- 
though this  act  cannot  be  so  restricted,  yet  (it  is  said)  many  of  its 
provisions  show  that  the  legislature  had  in  view  contests  between 
dififerent  claimants  to  offices  and  franchises,  and  its  enactments 
ought  to  be  understood  with  reference  to  contests  of  this  description 
only.  Here,  it  is  not  shown  what  interest  or  claim  the  relator,  Henry 
Giles,  had  in  or  to  the  subject  matter  of  this  controversy,  and  it  can- 
not be  intended  that  the  legislature  meant  that  he  or  any  other  offi- 
cious stranger,  might,  under  the  cover  of  this  act,  and  in  the  guise 
of  a  relator,  call  on  any  officer  of  the  state,  governor,  sheriff  or 
judge,  to  show  the  warrant  for  his  public  acts,  in  order  to  spy  out, 
if  possible,  some  defect  of  title. 

We  have  before  had  occasion  to  say  (see  State  v.  King-,  decided 
at  this  term),  that  there  are  some  provisions  in  this  act  as  to  pro- 
ceedings by  mandamus,  M^hich  must  be  regarded  as  applicable  only 
to  contests  between  individuals.  But  we  cannot  yield  to  the  argu- 
ment that  the  enactments  of  the  statute  were  not  meant  to  apply  to 
any  other.  The  purpose  of  the  legislature,  we  have  no  doubt,  was 
as  broad  and  comprehensive  as  the  terms  of  the  act  indicate ;  that 
is  to  say,  to  regulate  the  mode  by  which  all  usurpations  of  offices 
and  franchises  might  be  examined  and  determined  in  the  covtrts  of 
justice,  "as  is  usual  in  cases  of  information  in  the  nature  of  a  quo 
ivarranto."  Such  informations  lay  at  the  common  law,  independ- 
ently of  any  statute,  for  intrusion  into  any  office  affecting  the  pub- 
lic, or  for  the  exercise  of  a  franchise  of  what  was  termed  a  regal 
character.  Buller's  Nisi  Prius  211 ;  The  King  v.  Highmore,  5  Barn. 
&  Aid.  771 ;  Com.'s  quo  warranto,  A.  B.  The  object  of  the  statute 
of  Anne  was  to  regulate  the  proceedings  thereon  in  certain  cases 
relating  to  corporations,  and  our  legislature  followed  that  statute 
as  a  fit  model  for  regulating  the  proceedings  on  informations  gen- 
erally. There  can  be  no  serious  danger  that,  under  our  act,  the  pub- 
lic repose  will  be  capriciously  disturbed,  since  no  information  under 


400  STATE   EX   REL.    BROWN   V.    MCMILLAN.  §    4 

it  will  lie.  but  with  leave  of  the  court,  and  then  must  be  prosecuted 
by  the  proper  law  officer  of  the  state  upon  his  official  responsibility. 
Whether  in  this  case,  it  was  necessary  that  any  relator  should  be 
named,  we  stop  not  to  enquire.  For  whether  he  be  named  or  not, 
the  inform.ation  is  that  of  the  solicitor  of  the  state ;  and  we  hold  it  to 
be  clear  that  under  our  act  "concerning  the  attorney  general  and 
solicitors  for  the  state",  each  solicitor  within  his  respective  circuit, 
holds  in  all  pleas  of  the  state,  the  same  authority  which  the  attorney 
general  mav  exercise  therein,  within  his  circuit.  There  is  nothing 
in  the  nature  of  the  office  here  claimed  which  should  exempt  usurpa- 
tions of  it  from  the  mode  of  legal  examination  and  trial  provided  by 
this  act.  See  People  v.  Van  Slick,  4  Cow.  323;  Com.  v.  Fowler,  10 
Mass.  295. 

Other  objections  have  been  made  to  the  mode  of  proceeding,  but 
thev  do  not  appear  to  us  well  founded.  It  has  been  objected  that  it 
does  not  appear  that  this  information  was  filed  by  leave  of  the  court. 
\\'ithout  admitting  that  it  is  necessary  that  this  fact  shall  appear 
affirmatively,  we  hold,  that  in  this  case,  the  explicit  sanction  by  the 
court  of  the  information  of  the  solicitor,  as  declared  of  record,  shows 
that  it  was  filed  wnth  the  leave  of  the  court. 

It  has  been  objected  that  the  full  title  of  the  solicitor  of  the  state 
is  not  set  forth  in  the  information,  but  he  is  termed  "Solicitor"  only. 
The  court  knows  judicially  w^ho  is  the  solicitor  for  the  state  in  that 
circuit ;  and  we  presume  it  had  no  difficulty,  and  we  can  have  none, 
in  understanding  that  it  was  in  this  official  character  the  information 
was  filed.  If  there  be  anything  in  the  objection,  it  is  formal  only 
and  cannot  avail  the  respondent  on  a  demurrer  to  his  plea. 

We  see  no  sufficient  cause  to  disapprove  the  judgment  from  which 
the  respondent  has  appealed  to  this  court.  This  opinion  must  be 
certi'fied  to  the  superior  court  of  Rowan,  that  the  said  court  may  pro- 
ceed in  the  matter  before  it  accordingly. 

Per  curiam.     Judgment  affirmed. 


ST.VTE  i-x  REL.  I'.ROWX  v.  McMILLAN. 
1R91.     Supreme  Court  of  Mlssourl     108  Mo.  153. 

Gantt,  p.  y.  Hiis  is  a  ]:)rocccding  upon  information  of  the 
prosecuting  attorney  of  Jackson  County  ex  officio  to  test  the  right 
of  rt'spDUflents  to  exercise  the  powers  and  discharge  the  duties  of 
tncmbrrs  of  the  board  of  aldermen  of  the  city  of  Wcstport,  in  Jack- 
son Conntv.     *     *     * 

T.  We  arc  met  at  the  threshold  with  the  technical  obiection  that 
ihr  "ri.'.rciiting  attorney  is  not  permitted  by  the  laws  of  this  state  to 


§    4  THE  PARTIES.  4OI 

prosecute  a  writ  of  quo  zvarranto  "without  the  intervention  of  some 
third  person  as  relator."  This  contention  is  more  plausible  than 
sound.  By  section  637,  Revised  Statutes  1889,  it  is  provided,  "the 
prosecuting-  attorneys  shall  commence  and  prosecute  all  civil  and 
criminal  actions  in  their  respective  counties  in  which  the  county  or 
the  state  may  be  concerned."  That  the  state  is  interested  in  prevent- 
ing any  person  usurping  or  intruding  himself  into  an  office  created 
by  its  laws,  is  now  firmly  settled.  This  is  a  proceeding  by  the  prose- 
cuting attorney  ex  officio.  It  has  been  ruled  uniformly  since  State 
V.  Merry,  3  Mo.  278,  that  the  writ  of  quo  warranto  is  a  writ  of  right 
and  the  attorney  general  need  not  ask  leave  to  file  his  information. 

In  State  ex  rcl.  v.  Rose,  84  Mo.  198,  the  precise  point  raised  by 
the  demurrer  here  was  made,  and  it  was  ruled  that  "informations 
by  the  attorney  general  or  prosecuting  attorney  ex  officio  may  be 
filed  without  leave,  as  a  matter  of  course."  This  court  has  never 
been  disposed  to  deny  the  state  the  right  to  inquire,  through  her 
properly  constituted  officers,  into  the  right  of  any  person  to  one  of 
its  public  offices.  It  is  conceded  by  respondents  that  this  court  has 
often  entertained  and  determined  like  proceedings,  brought  and 
prosecuted,  in  which  the  prosecuting  attorney  was  the  sole  relator. 
This  is  certainly  true,  and  it  does  seem  to  us  that  it  is  peculiarly  ap- 
propriate that  the  prosecuting  attorney  should  represent  the  state  in 
such  cases,  and  we  see  no  reason  for  departing  from  this  w^ell  estab- 
lished practice.     State  ex  rel.  v.  Frazier,  98  Mo,  426.     *     '''     * 

Demurrer  of  respondents  overruled. 

The  state  or  people  as  plaintiff.  In  the  absence  of  statute  changing  the 
form  of  action,  it  appears  to  be  the  uniform  rule  in  this  country  that  the 
proceedings  in  quo  zvarranto  must  be  instituted  in  the  name  of  the  sover- 
eign, the  people  or  state,  or  some  officer  representing  them,  and  a  private 
citizen  will  not  be  permitted  to  file  the  information  in  his  own  name ;  this, 
although  the  remedy  is  now  universally  regarded  as  civil  in  substance  though 
criminal  in  form.  See  Lowther's  Case,  Ld.  Raym.  1409 ;  Territory  v.  Lock- 
wood,  3  Wall.  (U,  S.)  236;  Chesshire  v.  People,  116  111.  493:  Churchill  v. 
Walker,  68  Ga.  681 ;  State  v.  Union  Inv.  Co.,  7  S.  Dak.  51 ;  Commonwealth 
V.  Lexington,  etc.,  Co.,  6  B.  Mon.  (Kv.)  397;  Bartlett  v.  State,  13  Kan. 
99 ;  Saunders  v.  Catling,  81  N.  Car.  298 :  State  v.  Stein,  13  Neb.  529 ;  Rice 
V.  National  Bank,  126  Mass.  300;  People  v.  Curtis,  i  Idaho,  753;  Lindsey 
V.  Attorney-General,  33  ]\Iiss.  508 ;  United  States  v.  Lockwood,  i  Pinney 
(Wis.)  359;  Murphy  v.  Farmers'  Bank,  20  Pa.>  St.  415;  State  v.  Paterson, 
etc.,  Co.,  I  Zab.  (N.  J.)  9;  State  v.  Schnierle,  5  Rich.  L.  (S.  Car.)  299; 
State  V.  Gleason,  12  Fla.  190;  Babcock  v.  Hanselman,  56  Mich.  27;  State 
V.  McMillan,  108  Mo.  153;  Demarest  v.  Wickham,  6;^  N.  Y.  320;  Com- 
monwealth v.  Union,  etc.,  Ins.  Co.,  S  Mass.  230:  Scott  v.  Clark,  i  Iowa, 
70;  Wright  v.  Allen,  2  Tex.  158;   State  v.  Equitable,  etc.,  Co.,  142  jNIo.  325. 

Under  the  statutes  in  many  of  the  states,  permitting  "any  person  or  per- 
sons desiring  to  prosecute  the  same"  to  file  an  information  in  quo  warranto, 
the  suit  often  narrows  itself  dc  facto  into  a  contest  between  two  citizens ; 
especially  is  this  so  where  the  right  to  a  public  office  is  the  object  of  the 
proceeding.  Under  such  statutes,  the  discretion  of  the  court  is  character- 
istic of  the  nature  of  the  writ  as  an  extraordinary  remedy,  since,  unless 
the  relator  is  able  to  show  some  definite  interest  in  the  subject  matter 
of  the   suit,   the  writ  will   usually  be   refused.      But   in   some   states   permis- 


402  COMMONWEALTH  EX  REL.    MCLAUGHLIN  V.   CLULEY.  §    4 

sion  will  be  granted  a  private  citizen,  where  his  interest  appears  of  suffi- 
cient importance,  to  file  the  information  without  the  consent  or  name  of 
the  state's  attorney.  State  v.  Orvis,  20  Wis.  235;  Camman  v.  Bridgewater, 
etc.,  Co.,  12  N.  J.  L.  84. 


2.     Private  citizen  as  relator. 

COMMOxXWEALTH  ex  rel.  McLAUGHLIN  v.  CLULEY. 
1867.     Supreme  Court  of  Pennsylvania.     56  Pa.  St.  270: 

This  was  a  rule  in  the  supreme  court.  No.  147,  to  October  and 
November  Term,  1867,  on  the  suggestion  of  J.  Y.  McLaughlin,  to 
show  cause  why  a  quo  zvarranto  should  not  issue  against  Samuel  B. 
Cluley,  to  answer  by  what  warrant  he  held  and  exercised  the  office 
of  sheriff  of  Allegheny  county. 

The  suggestion  set  out  that  at  the  general  election,  October  9, 
1866,  Cluley  received  19,915  votes  for  the  office  of  sheriff,  and  Mc- 
Laughlin received  12,925  votes  for  the  same  office ;  that  Cluley  was 
commissioned  on  the  12th  day  of  November,  1866,  notwithstanding 
he  had  been  commissioned  for  the  same  office  on  the  28th  of  August, 
1863,  and  had  discharged  its  duties  until  the  first  Monday  of  De- 
cember, 1863,  and  could  not  lawfully  be  commissioned  as  sheriff  of 
the  same  county  twice  in  six  years ;  that  being  in  violation  of  article 
6,  section  i,  of  the  constitution  of  Pennsylvania. 

The  opinion  of  the  court  was  delivered  by 

Strong,  J.  A  writ  of  quo  warranto  is  not  a  writ  of  right.  Even 
our  act  of  assembly  of  June  14th,  1836,  recognizes  this.  It  enacts 
that  such  writ  may  be  issued  by  the  Supreme  Court  in  all  cases  in 
which  the  writ  of  quo  zvarranto  at  common  law  may  have  been  is- 
sued, and  in  which  the  said  court  had,  before  the  passage  of  the  act, 
possessed  the  power  of  granting  informations  in  the  nature  of  said 
writ.  The  P>ritish  statute  of  9th  Anne,  ch.  20,  was  not,  at  first, 
adopted  in  this  state.  It  was  not  reported  in  force  by  the  judges ; 
but  its  provisions  were  incorporated  into  our  revised  code.  Under 
the  British  statute  it  was  always  held  to  be  within  the  discretion  of 
the  court  whether  to  grant  or  withhold  an  information  in  the  nature 
of  a  quo  warranto,  and  the  court  acknowledged  themselves  bound  to 
exercise  a  sound  discretion  upon  a  consideration  of  the  circum- 
stances of  each  particular  case.  This  was  said  by  Lord  Mansfield  in 
Rex  V.  Wardroper,  4  Burr.  1964,  and  the  same  rule  was  recognized 
^n  Rex  v.  Dawes,  4  Burr.  2022,  and  in  Rex  v.  Sarjeant,  5  Term. 
Rc[).  467,  and  there  are  cases  in  which  the  courts  have  refused  leave 
to  file  an  information  at  the  suggestion  of  a  private  relator,  even 
when  a  valid  objection  to  the  defendant's  title  has  been  shown  ;  Rex 
V.  Parry,  6  Ad.  &  lU.  810,  2  N.  &  P.  414.  Nor  has  this  court  since  the 


I    4  THE  PARTIES.  4O3 

act  of  1836,  adopted  any  other  rule.  In  Commonwealth  v.  Jones,  12 
Penn.  St.  Rep.  365,  the  British  Practice  was  recognized  as  the  rule 
with  us,  and  though  it  has  since  been  decided  that  it  is  not  indis- 
pensable, a  rule  to  show  cause  should  be  obtained  before  the  writ  can 
issue,  no  decision  has  been  made  that  this  court  is  bound  to  entertain 
such  writ,  if  in  their  opinion  it  is  improvidently  issued.  The  issue 
of  the  writ  does  not  end  the  discretion  of  the  court. 

Before  the  act  of  1836,  informations  in  the  nature  of  quo  war- 
ranto, at  the  instance  of  a  private  relator,  were  always  required  to 
be  by  leave  of  the  court,  and  leave  was  not  granted  except  upon  the 
application  of  a  competent  relator.  No  one  was  held  competent  who 
had  not  a  sufficient  interest  to  warrant  his  interference,  and  our  stat- 
ute has  made  no  change  in  this  particular.  Its  second  section  gives 
to  courts  of  common  pleas  concurrent  jurisdiction  with  the  supreme 
court  in  five  classes  of  cases.  The  first  three  relate  to  municipal  and 
other  corporate  offices,  and  the  act  provided  that  in  any  such  case 
the  writ  might  be  issued  upon  the  suggestion  of  the  attorney  gen- 
eral or  his  deputy  in  the  respective  county,  or  of  any  person  or  per- 
sons desiring  to  prosecute  the  same.  The  other  two  classes  relate  to 
usurpations  of  corporate  rights,  or  forfeiture  of  corporate  privi- 
leges. As  the  act  was  reported  by  the  commissioners  to  revise  the 
civil  code,  it  was  drawn  so  as  to  provide  that  writs  in  such  cases 
should  be  granted  only  upon  the  suggestion  of  the  attorney  general 
or  his  deputy.  The  legislature,  however,  altered  the  provision,  and 
enacted  that  writs  in  these  cases,  as  in  others  might  be  issued  upon 
the  suggestion  of  any  person  or  persons  desiring  to  prosecute  the 
same.  But  the  statute  of  9th  Anne  allowed  informations  at  the  rela- 
tion of  any  person  desiring  to  sue  or  prosecute  them,  and  under  that 
statute  the  rule  was,  that  a  private  relator  must  have  an  interest. 
Our  act,  which  substantially  incorporates  the  provisions  of  the  Brit- 
ish statute,  has  received  the  same  construction.  The  court  has  con- 
strued the  zvords  "any  person  or  persons  desiring  to  prosecute  the 
same"  to  mean  any  person  zuho  has  an  interest  to  he  affected.  They 
do  not  give  a  private  relator  the  writ  in  a  case  of  public  right,  in- 
volving no  individual  grievance.  This  was  ruled  in  the  Com.  v.  The 
Allegheny  Bridge  Co.,  8  Plarris  185,  in  Murphy  v.  Fanners'  Bank, 
id.  415.  and  Com.  v.  R.  R.  Co.,  id.  518.  And  if  is  to  be  observed  that 
the  legislature  has  placed  all  the  five  classes  of  cases  enumerated  in 
the  act  on  the  same  footing  in  this  particular.  If  a  private  relator 
cannot  sue  out  a  writ  to  enforce  a  forfeiture  without  having  an  in- 
terest, the  statute  gives  him  no  greater  right  when  he  complains  of 
usurpation  of  a  county  or  township  office.  The  right  of  the  relator 
in  each  class  of  cases  is  defined  by  the  same  words. 

The  relator  in  the  present  case  suggests  that  Samuel  B.  Cluley 
now  usurps,  intrudes  into  and  unlawfully  holds  the  office  of  high 
sheriflf  of  Allegheny  county ;  that  at  the  general  election  on  the  9th 
day  of  October,  1866,  an  election  was  held  for  the  sheriflF  of  said 


404  COMMONWEALTH    KX   REL.    MCLAUGHLIN   V.    CLULEY.  §    4 

county,  that  at  the  election  the  said  Ckiley  received  nineteen  thou- 
sand nine  hundred  and  fifteen  votes,  and  the  relator  received  twelve 
thousand  nine  hundred  and  twenty-five  votes  for  the  said  office ; 
that  the  vote  was  certified  to  the  governor,  and  that  Cluley  was  com- 
missioned sheriff,  and  that  he  has  since  acted  as  such  notwithstand- 
ing the  fact  that  he  was  commissioned  sheriff  of  the  said  county  on 
the  twenty-eighth  of  August,  1863,  and  discharged  the  duties  of  the 
office  from  that  time  until  the  first  Monday  of  December,  1863. 

Now  on  this  showing,  what  interest  has  the  relator  in  the  question 
he  attempts  to  raise?  Wliat  more  than  any  inhabitant  of  Allegheny 
county,  or  of  the  Commonwealth?  He  was  a  rival  candidate  for  the 
office  at  the  election,  but  he  was  defeated  with  a  majority  against 
him  of  six  thousand  nine  hundred  and  ninety.  Doubtless  if  his  suc- 
cessful rival  is  incapable  of  holding  the  office  on  account  of  the  con- 
stitutional provision  "that  no  person  shall  be  twice  chosen  or  ap- 
pointed sheriff  in  any  term  of  six  years",  or  for  any  other  reason, 
and  that  incapacity  entitles  him,  the  relator,  to  the  office,  he  has  an 
interest.  He  certainly  can  have  none  if  a  judgment  of  ouster  against 
Cluley  would  not  give  the  sheriffalty  to  him.  But  surely  it  cannot  be 
maintained  that  in  any  possible  contingency  the  office  can  be  given  to 
him.  The  rotes  cast  at  an  election  for  a  person  who  is  disqnalified 
from  holding  an  office  are  not  nnllitics.  They  cannot  be  rejected  by 
the  inspectors,  or  thrown  out  of  the  count  by  the  return  judges.  The 
disqualified  person  is  a  person  still,  and  every  vote  thrown  for  him  is 
formal.  Even  in  England  it  has  been  held  that  votes  for  a  disquali- 
fied person'  are  not  \o?X  or  thrown  away  so  as  to  justify  the  presid- 
ing officers  in  returning  as  elected  another  candidate  having  a  less 
number  of  votes,  and  if  they  do  so,  a  qno  warranto  information  will 
be  granted,  against  the  person  so  declared  to  be  elected,  on  his  ac- 
cepting the  office.  See  Cole  on  Qno  Warranto  Informations,  141-2; 
Regina  v.  Hiorns,  7  Ad.  &  E.  960;  3  Nev.  &  Perry  184;  Rex  v. 
Bridge,  i  M.  &  S.  76.  Under  institutions  such  as  ours  are,  there  is 
even  greater  reason  for  holding  that  a  minority  candidate  is  not  en- 
titled to  the  office  if  he  who  received  the  greatest  number  of  votes  is 
disqualified.  We  are  not  informed  that  there  has  been  any  decisions 
strictly  judicial  ujion  the  subject  but  in  our  legislative  bodies  the 
question  has  been  determined.  It  was  determined  against  a  minority 
candidate  in  the  legislature  of  Kentucky,  in  a  case  in  which  ]\tr. 
Clay  made  an  elaborate  report,  and  was  sustained.  In  1793,  Albert 
Gallatin,  elected  a  senator  from  this  state,  was  declared  by  the  Sen- 
ate of  the  United  States  disc|ualified  because  he  had  not  been  a  citi- 
zen of  the  United  States  nine  years  and  his  election  was  declared 
void  for  that  reason,  but  the  seat  was  not  given  to  his  competitor. 
Nobody  supposed  the  minority  candidate  was  elected.  There  have 
been  several  other  cases  of  contested  elections  in  which  the  success- 
ful candidates  were  decided  to  have  been  disqualified,  and  denied 
thfir  M^^l(•f•^.     Jf,h,i  Bnilev's  case  is  one  of  them.     He  was  elected  to 


§    4  'IHE  PARTIES.  405 

Congress  from  Alassachusetts,  and  refused  his  seat  in  1824.  But 
neither  in  his  case,  or  any  other  with  which  we  are  ac- 
quainted, were  the  votes  given  to  the  successful  candidate  treated  as 
nulhties,  so  as  to  entitle  one  who  had  received  a  less  number  of 
votes  to  the  office.  There  is  a  class  of  cases  in  England  apparently, 
but  not  really,  asserting  otherwise.  The  earliest  of  them  are  referred 
to  by  Mr.  Buller  in  his  argument  in  Rex  v.  Munday,  Cowper  530. 
They  were  followed  by  Rex  v.  Hawkins,  10  East  211,  and  Rex  v. 
Parry,  14  id.  549.  In  these  cases  it  is  said  that  if  sufficient  notice  is 
given  of  a  candidate's  disqualification,  and  notice  that  votes  given 
for  him  will  be  thrown  away,  votes  subsequently  cast  for  him  are 
lost,  and  another  candidate  may  be  returned  as  elected  if  he  has  a 
majority  of  good  votes  after  those  so  lost  are  deducted.  There  is 
more  reason  for  this  in  England  where  the  vote  is  vk'a  z'oce,  and  the 
elective  franchise  belongs  but  to  few,  than  hdre,  where  the  vote  is  by 
ballot,  and  the  franchise  well  nigh  universal.  In  those  cases  the  no- 
tice was  brought  home  to  almost  every  voter,  and  the  number  of 
electors  was  never  greater  than  three  hundred  and  generally  not 
more  than  two  dozen.  Besides  a  man  who  votes  for  a  person  with 
knowledge  that  the  person  is  incompetent  to  hold  the  office,  and  that 
his  vote  therefore  cannot  be  effective,  that  it  will  be  thrown  away, 
may  very  properly  be  considered  as  intending  to  vote  a  blank  or 
throw  away  his  vote. 

But  the  present  relator  suggests  no  such  case.  He  does  not  even 
aver  that,  if  the  votes  given  for  Cluley  were  thrown  out,  he  re- 
ceived a  majority,  though  doubtless  such  was  the  truth.  He  has 
therefore  exhibited  no  such  interest  as  entitled  him  to  be  heard. 

On  the  argument  we  were  told  that  in  Rex  v.  Godwin,  Douglass 
387  (396),  it  was  held  that  the  rival  candidate  was  the  most  proper 
relator.  An  examination  of  the  case,  however,  shows  this  to  be  a 
mistake.  The  rival  candidate  was  the  relator,  but  he  received  a 
majority  of  the  votes.  Doubtless  m  England,  when  the  information 
is  against  a  burgess  or  alderman  of  a  borough,  a  corporator  is  held 
a  fit  relator.  He  has  an  interest.  Our  case  of  Commonwealth  v. 
Small,  2  Casey  31,  cited  in  support  of  the  suggestion,  instead  of 
being  any  real  support,  is  adverse  to  it.  The  relator  was,  it  is  true, 
a  rival  candidate,  but  his  suggestion  was  not  supported  for  that  rea- 
son, but  because  there  had  been  a  subsequent  election  at  which  he 
had  been  elected.  The  court  put  the  right  to  intervene  expresslv 
upon  the  ground  of  that  subsequent  election.  Said  Lowrie,  I.,  "The 
relator  shows  sufficient  evidence  of  title  in  himself  to  authorize  him 
to  institute  this  proceeding.  He  acquired  it  at  a  subsequent  election, 
and  if  that  is  not  contested  on  any  other  grounds  than  the  supposed 
validity  of  the  prior  election,  then,  of  course,  he  is  entitled  to  the 
office."  The  plain  inference  from  this  is,  that  had  it  not  been  for  the 
second  election,  he  would  have  been  an  incompetent  relator. 

It  need  only  be  said  that  in  regard  to  the  act  of  April  13,  1840, 


406        PEOPLE  EX   REL.   JONES  V.    NORTH   CHICAGO   RAILWAY  CO.         §    4 

that  the  relator  referred  to  in  it  is  a  person  entitled  to  the  office  if 
judgment  be  given  aginst  the  party  in  possession. 

After  what  has  been  said,  it  will  be  seen  that  we  are  of  the  opin- 
ion J.  Y.  McLaughlin  has  no  such  interest  as  entitles  him  to  be 
heard  in  a  writ  of  quo  zvarranto.  The  question  which  he  seeks  to 
raise  is  a  public  one  exclusively,  and  it  can  be  raised  only  at  the  in- 
stance of  the  attorney  general. 

The  writ  of  Quo  Warranto  is  denied. 

In  accord. — State  v.  Matthews,  44  W.  Va.  372;  Commonwealth  v.  Mc- 
Carter,  98  Pa.  St.  607,  614;  Contra.  Londoner  v.  People,  15  Colo.  557; 
Crovatt  V.   Mason,   loi   Ga.  246. 

That  any  citizen  or  taxpayer  has  sufficient  interest  to  enable  him  to 
maintain  proceedings  to  oust  the  unlawful  incumbent  of  a  municipal  office, 
see  Hinckley  v.  Breen,  55  Conn.  119;  State  v.  Jenkins,  25  Mo.  App.  484; 
Davis  V.  City  Council,  etc.,  90  Ga.  817;  Londoner  v.  People,  15  Colo.  557; 
State  V.  Hammer,  42  N.  J.  L.  435;  Contra.  Miller  v  Town  of  Palermo, 
12  Kan.  14;  State  v.  Matthews,  44  W.  Va.  372;  Voisin  v.  Leche,  23  La. 
Ann.  25;   State  v.  Stein,   13   Neb.  529;   Barnum  v.  Oilman,  27  Minn.  466. 


PEOPLE  EX  REL.  JONES  v.  NORTH  CHICAGO  RAILWAY 

COMPANY. 

1878.     Supreme  Court  of  Illinois.     88  111.  537. 

Appeal  from  the  Criminal  Court  of  Cook  County ;  the  Honorable 
William  W.  Farwell,  Judge,  presiding: 

The  record  shows  that  at  the  August  Term,  1875,  of  the  Criminal 
Court  of  Cook  County,  the  following  motion  was  presented  to  the 
court : — 

"And  now  on  this  day  comes  Charles  H.  Read,  the  State's  attor- 
ney for  said  county  of  Cook,  and  at  the  instance  of  Judson  W.  M. 
Jones,  as  relator,  presents  to  the  court  the  annexed  petition  of  the 
said  Judson  W.  M.  Jones,  for  leave  to  file  an  information  in  the  na- 
ture of  a  quo  warranto,  in  the  name  of  the  people  of  the  state  of  Illi- 
nois, against  the  North  Chicago  Railway  Co.     '•'     *     *" 

The  ])etition  is  as  follows,  omitting  the  caption : 

"Your  petitioner,  Judson  W.  M.  Jones,  respectfully  represents 
that  the  North  Chicago  Railway  Comjiany,  is  a  corporation  created 
and  existing  by  virtue  of  an  act  of  the  legislature  of  the  state  of  Illi- 
nois, approved  Feb.  14,  1859,  entitled  'an  act  to  promote  the  con- 
struction of  horse  railways  in  the  city  of  Chicago' ;  that  some  years 
ago  the  said  company  constructed,  and  has  ever  since  maintained, 
and  still  maintains,  a  street  railway  in  the  town  of  Lake  View,  in  the 
county  of  Cook,  and  has  for  some  time  been  and  now  is,  operating 
the  same,  frf)m  the  northern  limits  of  the  city  of  Chicago,  upon  and 


§    4  THE  PARTIES.  407 

along  the  following  streets  of  the  said  town  of  Lake  View,  in  the 
county  of  Cook,  towit : — from  such  northern  limits  of  the  city  of 
Chicago,  upon  and  along  North  Clark  Street,  by  horse  power,  to 
Diversey  Street,  at  its  intersection  with  the  Evanston  Road,  thence 
northerly  by  steam  power,  upon  and  along  said  Evanston  Road,  to 
Graceland  Avenue,  and  thence  west  on  Graceland  Avenue,  by  steam 
power  to  Graceland  cemetery ;  that  as  your  petitioner  is  informed  and 
believes,  the  only  warrant  or  authority  which  said  company  has  or 
claims  to  have  for  the  construction,  maintenance  and  operation  of 
such  street  railway  within  said  town  of  Lake  View,  in  the  manner 
aforesaid,  is  the  aforesaid  act  of  the  legislature  of  said  state  of  Illi- 
nois, one  section  of  which  action  purports  to  authorize  said  company 
to  extend  its  road  to  any  point  in  Cook  county. 

"Your  petitioner  is  advised  and  believes,  that  so  much  of  your  act 
as  authorizes  said  company  to  extend  its  railway  beyond  the  corpo- 
rate limits  of  the  City  of  Chicago  is  unconstitutional  and  void,  being 
contrary  to  that  provision  of  that  clause  of  section  23,  of  article  3, 
of  the  Illinois  State  Constitution  of  1848,  which  provides  that  no 
private  or  local  law  which  might  be  passed  by  the  general  assembly 
shall  embrace  more  than  one  subject,  and  that  shall  be  expressed  in 
the  title. 

"Your  petitioner  is  also  advised  and  believes,  that  for  the  same 
reason,  the  said  act  does  not  confer  upon  the  said  company  the 
power  to  use  steam  as  a  means  of  operating  its  railway,  even  over 
such  territory  as  it  can  rightfully  maintain  its  track  upon.  Your  pe- 
titioner represents  that  he  is  an  inhabitant  of  the  said  town  of  Lake 
View,  and  an  owner  of  real  estate  therein,  contiguous  to  one  of  the 
streets  upon  which  said  company  is  operating  its  steam  railway,  and 
that  your  petitioner  is  desirous  that  leave  may  be  given  to  the  state's 
attorney  for  the  said  county  of  Cook  and  state  of  Illinois,  on  behalf 
and  in  the  name  of  the  people  thereof,  to  file  an  information  in  the 
nature  of  a  quo  warranto,  and  upon  the  relation  of  your  petitioner, 
and  against  the  said  the  North  Chicago  Railway  Company,  to  make 
it  answer  to  the  said  people  by  what  warrant  it  claims  to  hold,  exe- 
cute, and  exercise,  the  liberties,  privileges,  functions,  powers  and 
franchises  aforesaid.  Judson  W.  M.  Jones." 

Verified  before  a  notary  public. 

(At  the  same  time  an  affidavit  of  the  president  of  said  re- 
spondent company  was  filed  and  presented  to  the  court  in 
opposition  to  the  motion.  It  denied  the  allegations  of  the  petition 
and  charged  that  the  relator  herein  was  prosecuting  this  proceeding 
for  private  and  personal  needs  and  ends.)      *     *     * 

*  *  *  The  court  refused  to  allow  leave  to  file  the  information 
and  the  record  is  brought  here  by  the  appeal  of  Judson  W.  M.  Jones. 

The  only  question  is,  did  the  court  err  in  refusing  leave  to  file  the 
information? 


408         PEOPLE  EX    REL.   JOXES  V.    NORTH   CHICAGO   RAILWAY   CO.  §    4 

Mr.  Chief  Justice  Schofield  delivered  the  opinion  of  the  court. 

Did  the  court  err  in  refusing  to  allow  the  relator  to  file  the  infor- 
mation ? 

The  ruling-  of  this  court,  is,  the  granting  of  leave  to  file  an  infor- 
mation in  the  nature  of  a  quo  ivarranto,  is  in  the  sound  discretion  of 
the  court  or  judge  to  whom  the  application  is  made.  Leave  on  the 
one  hand,  is  not  granted  as  a  matter  of  right  upon  the  part  of  the 
relator ;  and  on  the  other  hand,  a  court  is  not  at  liberty  to  arbitrarily 
refuse,  but  must  exercise  a  sound  discretion  according  to  the  princi- 
ples of  law.  The  People  ex  rel.  v.  Waite,  70  111.  25 ;  The  People  ex 
rcl.  V.  Callaghan,  83  id.  128. 

Tt  is  here  showai  that  Jones  is  an  inhabitant  of  the  town  in  which 
the  road  is  being  operated,  and  the  owner  of  real  estate  therein ;  but 
it  is  not  shown  that  he  is,  either  specially  as  an  individual  or  in  com- 
mon with  all  the  other  citizens  of  the  town,  injured  by  the  construc- 
tion and  operation  of  the  road.  The  opposing  affidavit  is  properly 
to  be  taken  into  consideration  in  determining  whether  the  writ  should 
have  been  issued  (the  People  ex  rcl.  v.  Waite,  supra),  and  it  dis- 
tinctly rebuts  all  inference  that  might  arise  from  the  mere  conceded 
fact  of  the  construction  and  operation  of  the  road,  of  either  private 
or  public  injury,  and  shows  also  that  the  road  was  constructed  long 
before  Jones  became  the  owner  of  his  present  property  in  the  town ; 
that  it  was  constructed  and  has  since  been  operated  "at  the  earnest 
solicitation  of  inhabitants  of  the  towm. — owners  of  property  abutting 
upon  the  road  and  streets  occupied;"  that  "no  objection  has  ever 
been  made  to  the  operation  of  the  railway  so  far  as  the  officers  of 
the  company  know,  except  as  made"  by  Jones,  and  that  it  is  the  al- 
most universal  desire  of  the  inhabitants  of  the  town  and  those  who 
travel  on  the  railway  that  it  should  be  operated  by  steam. 

J V here  a  corporation,  by  the  exercise  of  pozccrs  not  conferred  by 
its  charter,  docs  no  private  injury,  and  commits  an  offense  against 
the  public  alone,  the  state  may  punish  or  zvaive  the  right  to  do  so,  as 
in  the  judgment  of  those  entrusted  with  the  appropriate  pozver  in 
that  respect  may  be  deemed  most  in  consonance  zvith  the  public  in- 
terest. If  a  wrong  is  done  by  an  abuse  of  the  franchise,  it  is  a  pub- 
lic zvrong,  and  a  proceeding  by  quo  zvarranfo  must  be  by  the  public 
prosecutor  or  other  authorised  agent  of  the  state;  and  a  private  citi- 
zen cannot,  in  such  case,  have  the  aid  of  this  extraordinary  remedy. 
High  on  Extraordinary  Legal  Remedies,  S  654,  and  cases  there  cited  ; 
Angcll  &  Ames  on  Corporations,  §  736;  Murphy  v.  Farmers'  Rank. 
20  Pa.  St.  415.  And  it  is  also  said  (High  on  Extraordinary  Legal 
Rmif'dics.  .^Kpra),  "/\n  exception,  however,  is  recognized  in  cases 
aft'ccling  only  private  or  individual  rights,  and  which  merely  aff^ect 
the  administration  of  the  corporate  fiuictions,  without  affecting  the 
existence  of  the  corporation,  and  in  such  cases  it  is  held  that  the 
courts  nln^•  interpose  on  a  proper  showing."     But,  since  Jones  has 


§    4  ri^^  I'AKTIES.  409 

sustained  no  special  injury  affecting  liis  private  01  individual  rights, 
this  principle  is  not  involved  in  the  case. 

It  is,  however,  contended  that  Jones  is  entitled  to  file  the  infor- 
mation, whatever  may  have  been  his  rights  at  common  law,  by  vir- 
tue of  the  provision  of  §  i,  chapter  112,  Rev.  Stats.  1874,  p.  787. 

That  section  says :  "The  attorney  general  or  state's  attorney  of 
the  proper  county,  cither  of  his  own  accord  or  at  the  instance  of  an 
individual  relator,  may  present  a  petition  to  any  court  of  record  of 
competent  jurisdiction,  or  any  judge  thereof  in  vacation,  for  leave 
to  file  an  information  in  the  nature  of  a  quo  warranto,  in  the  name 
of  the  people  of  the  state  of  Illinois ;  and  if  such  judge  or  court  shall 
be  satisfied  that  there  is  probable  ground  for  the  proceeding,  the 
court  or  judge  mav  grant  the  petition  and  order  the  information  to 
be  filed." 

There  is  nothing  here  that  authorizes  any  one  other  than  the  at- 
torney general  or  state's  attorney  to  present  a  petition  for  leave  to 
file  an  information.  This,  he  may  do  either  of  his  own  accord  or  at 
the  instance  of  any  individual  relator,  but  the  language  does  not 
profess  to  obliterate  the  well  recognized  distinction  between  informa- 
tions in  behalf  of  the  public  to  enforce  public  rights,  and  those  in 
behalf  of  individuals  to  enforce  private  rights.  Nor  does  it  assume 
to  place  the  control  of  informations  to  enforce  public  rights  in  every 
individual  who  may  choose  to  intermeddle. 

The  attorney  general  or  state's  attorney,  if  the  information  affects 
public  rights  only,  may  undoubtedly  act  at  the  instance  of  any  indi- 
vidual who  may  furnish  him  the  requisite  proofs  to  authorize  him  to 
act,  whom  he  may  name  relator,  hut  he  must  act  in  his  official  capac- 
ity under  a  sense  of  official  duty,  and  not  merely  lend  his  name  for 
the  use  of  a  private  party ;  and  the  proceeding  must  be  offtcial  in 
fact,  and  not  simply  official  in  form  but  private  in  fact. 

In  all  matters  in  which  the  public  alone  is  concerned,  the  law  has 
wisely  placed  the  control  of  legal  proceedings  in  its  officers  selected 
for  that  purpose,  and  it  is  never  admissible  that  these  proceedings 
shall  be  allowed  to  be  used  as  mere  instruments  for  the  gratification 
of  private  malice,  or  the  attainment  of  personal  and  selfish  ends. 

The  petition  here  presented  is  not  the  petition  of  the  attorney 
general  or  states'  attorney,  but  of  Jones,  and  it  is  Jones  only,  not  the 
attorney  general  or  state's  attorney,  that  prays  that  leave  may  be 
given  to  file  an  information.  True,  it  appears  the  state's  attorney 
presented  the  petition  of  Jones,  and  made  the  motion,  but  it  is  quite 
evident  this  was  merely  formal. 

The  appeal  is  prayed  and  prosecuted  by  Jones,  and  no  complaint 
is  made  by  the  attorney  general  or  state's  attorney  of  the  refusal  of 
the  court  below  to  give  leave  to  file  the  information ;  but  errors  are 
assigned  and  argued  by  the  private  counsel  of  Jones  alone. 

The  court  below,  in  the  exercise  of  its  discretion,  was  authorized 


410  STATE   EX    REL.    STEELMAN    ET   AL.    V.    VICKERS.  §    4 

to  take  into  consideration  the  circumstances  showing  the  character 
of  the  proceeding,  and  if  satisfied,  as  we  think  it  was  justified  in 
being,  that  the  purpose  was  merely  to  allow  a  private  party  to  insti- 
tute proceedings  in  a  matter  concerning  the  public  alone,  it  was  not 
only  within  its  discretion,  but  likewise  its  duty  to  allow  the  informa- 
tion to  be  filed. 

Finding  no  evidence  in  the  record  of  abuse  of  discretion,  the  judg- 
ment is  afiirmed. 

Judgment  affirmed. 

See  also  Chesshire  v.  People,  116  111.  493;  State  v.  Tracy,  48  Minn, 
497;  People  V.  Pratt,  15  Mich.  184;  Commonwealth  v.  Dillon,  81%  Pa.  St. 
41;  Haupt  V.  Rogers,  170  Mass.  71;  Eaton  v.  State,  7  Blackf.  (Ind.)  65; 
State  V.  Bradford,  32  Vt.  50;  Hargrove  v.  Hunt,  y2>  N.  Car.  24. 

Where  the  object  of  the  information  is  not  to  correct  a  violated  right 
of  relator  Lut  simply  to  vindicate  the  rights  of  the  state,  the  relator  is 
treated  merely  as  a  prosecuting  witness  and  the  state's  attorney  may  dis- 
miss the  proceedings  even  in  the  face  of  relator's  objection.  State  v.  Doug- 
las  Co.,  etc.,   Co.,    ID  Ore.    198;   Attorney-General   v.   Barstow,  4  Wis.   567. 

And  in  such  cases  a  relator  is  not  only  unnecessary,  but  his  name  may 
be  omitted  altogether.     Chesshire  v.   People,  116  111.  493;   Bartlett  v.   State, 

13  Kan.  99 ;  State  v.  Milwaukee,  etc.,  R.  Co.,  45  Wis.  579,  595 ;  State  v. 
Rose,  84  Mo.  198;  Commonwealth  v.  Fowler,  10  Mass.  290,  295;  Taggart 
V.  James,  73   Mich.  234 ;   Mathews  v.   State,  82  Tex.  577. 

See  in  general  as  to  degree  of  interest  which  must  be  exhibited  by  relator. 
State  V.  Matthews,  44  W.  Va.  372;  People  v.  Miller,  16  Mich.  56;  Little  v. 
State,   75    Tex.    616;    People   v.    Londoner,    13    Colo.    303;    State   v.    Mason, 

14  La.  Ann.  505;  State  v.  Mote,  48  Neb.  683;  State  v.  Hall,  in  N.  Car. 
369;  State  v.  Hammer,  42  N.  J.  L.  435;  Yonkey  v.  State,  27  Ind.  236; 
Andrews  v.   State,  69  INIiss.  740. 


ST.VTE  EX  RET..  STEELMAN  et  al.  v.  VICKERS. 

1889.     Supreme  Court  of  New  Jersey.     51  N.  J.  L.  180;  17  Atl. 

153- 


Beasley,  C.  J.  This  is  an  information  in  the  nature  of  a  quo 
7varranto,  in  the  name  of  the  attorney  general,  at  the  instance  of 
private  relators.  The  object  of  the  procedure  is  to  test  the  legal 
right  of  the  defendant  to  the  office  of  common  councilman  of  the 
municipality  called  in  the  pleadings  "The  Mayor  and  Council  of  the 
i>orf)iigh  of  Somcrs  Point."  The  information  shows  that  this  bo- 
rough is  a  dc  facto  corporation  ;  that  in  the  year  1886,  it  was  or- 
ganized by  virtue  of  an  act  entitled  "An  act  for  the  formation  of 
borough  governments  in  seaside  resorts,"  a])prove(l  March  29,  1878, 
and  its  supplements;  and  that  in  the  following  year  the  defendant 
was  elected  to  the  office  now  in  question.  .A.s  a  ground  for  the 
ouster  of  the  defendant,   the   relator  then   avers  that  the  methods 


§    4  '^'^^1'   I'AKIIES.  411 

pursued  in  the  erection  of  this  municipahty  (Hd  not  conform  to  the 
statutory  standard  in  various  specified  particulars,  and  that  the  act 
itself  authorizing  the  creation  of  these  local  governments  is  uncon- 
stitutional. Consequently  it  will  be  perceived  that  the  theory  of 
the  relator's  case  is  that,  inasmuch  as  there  is  no  legal  municipality 
in  existence  in  this  instance,  there  can  be,  ex  necessitate,  no  such 
office  as  common  councilman  a])purtenant  to  it ;  the  inference,  of 
course,  being  that  the  defendant  is  illegally  arrogating  such  posi- 
tion. 

It  is  manifest  that  this  is  an  attempt  to  do  indirectly  what  this 
court  has  declared  cannot  be  done  directly ;  that  is,  for  a  private 
relator  to  call  in  question  the  existence  of  one  of  these  bodies 
that  are  public  corporations  at  least  de  facto,  if  not  de  jure.  Such 
an  endeavor  is  obviously  ])ossessed  of  all  that  impolicy  that  forms 
the  basis  of  the  prohibition  alluded  to ;  for  that  basis  was  that 
it  was  highly  inexpedient  that  these  municipalities,  being  the  deposi- 
tories of  a  part  of  the  governmental  power  of  the  state,  should 
have  their  very  being  put  at  hazard  whenever  any  member  of 
the  community  saw  fit  to  make  the  assault.  Being  public  institutions, 
it  was  determined  that  their  existence  ivas  not  to  he  challenged, 
except  by  the  state,  through  its  attorney  general,  he  acting  ex  officio, 
as  the  representative  of  the  public,  and  that  in  sucJi  a  procedure  his 
name  could  not  he  used  pro  forma  hy  a  private  relator.  This  being 
the  rule  and  its  reason,  it  is  manifest  that  it  would  be  absolutely 
l)reposterous  to  permit  the  corporate  existence  to  be  called  in  ques- 
tion by  a  private  person,  for  the  purpose  of  dismemberment ;  for, 
in  depriving  the  municipality  of  its  organs,  you  practically  dissolve 
it.  If  this  defendant  is  to  be  ousted  from  his  office  of  common 
councilman  on  the  ground  that  the  corporation  has  no  life,  so  for  the 
same  reason  can  his  associates  be  removed  from  their  posts;  and 
the  same  fate  would  await  all  the  other  functionaries  of  the  borough, 
and  thus  this  local  government  would,  for  all  useful  purposes  be  at 
an  end.  In  substance,  therefore,  the  result  of  this  indirect  attack, 
at  a  private  hand,  would  be  the  same  as  would  be  the  direct  attack, 
on  the  same  ground  upon  the  corporation,  and  the  latter  has  always 
been  declared  by  this  court  not  permissible.  It  is  proper  to  further 
remark  that  this  circuitous  assault  upon  the  corporate  existence  has 
an  additional  objection  to  those  inherent  in  an  immediate  assault, 
for  in  its  processes  the  mimicipality  is  not  brought  into  court,  and 
therefore  has  no  opportunity  of  defending  its  life.  Our  conclusion 
is  that  there  is  no  legal  ground  laid  for  ousting  the  defendant 
from  the  office  held  by  him,  and  consequently  he  is  entitled  to 
judgment  on  this  demurrer. 

See  also  Rex  v.  Parry,  6  A.  &  E.  810;  State  v.  McLaughlin,  15  Kan. 
228,  233;  State  V.  Tracy,  48  Minn.  497;  Commonwealth  v.  Union,  etc., 
Tns.  Co.,  5   Mass.  230;    State  v.   Brown,  31    N.   J.   L.   355. 


412  STATE  V.   DOUGLASS   COUNTY   ROAD   COMPANY.  §    4 

STATE  V.  DOUGLASS  COUNTY  ROAD  COMPANY. 
1881.     Supreme  Court  of  Oregon,     io  Oregon,  198. 

By  the  court,  Waldo,  J. — 

The  appellant,  the  Douglass  County  Road  Company,  is  a  private, 
as  distinguished  from  a  distinctly  public,  corporation,  (Douglass 
County  Road  Company  v.  Abraham,  5  Or.  518.)  Its  object  as 
specified  in  its  articles  of  incorporation,  was  "to  build  and  keep 
in  repair,  a  good  and  substantial  plank,  clay  and  gravel  wagon 
road  through  the  big  canyon,  in  Douglass  County,  State  of  Oregon, 
and  to  receive  tolls  for  travelling  over  said  road."  The  object 
of  this  action  is  to  annul  the  existence  of  the  corporation. 

Section  351  of  the  code  of  civil  procedure  abolished  the  writ  of 
quo  zvarranto  and  the  quo  zvarranto  information.  But  it  is  only 
the  form  of  proceeding  that  is  done  away  with  by  that  section. 
The  remedies  formerly  had  under  these  forms  are  now  had  under 
the  civil  action  specified  in  sections  353  and  354.  (People  v.  Hall, 
80  N.  Y.  119.) 

The  action  lies  only  for  franchises  exercised  without  or  in  vio- 
lation of  legislative  grant,  by  which,  in  this  covmtry,  all  franchises 
are  held.  (The  People  v.  The  Utica  Insurance  Company,  15  Johns. 
358;  Bank  of  Augusta  v.  Earle,  13  Pet.  595;  Ang.  &  Ames,  on 
Cor.  §§  731,  737;  United  States  v.  Lockwood,  i  Pinney's  Rep. 
(Wis.)  363;  Territory  v.  Lockwood,  3  Wall.  236;  Cole  on  In- 
formations,  III.) 

In  England  the  attorney  general  could  file  quo  zvarranto  and  other 
informations  at  his  discretion.  But  in  practice,  he  seldom  did 
so,  except  where  the  prerogatives  of  the  crown  were  specially 
concerned.  Where  the  interests  of  individuals  were  intermingled 
with  those  of  the  crown,  the  master  of  the  crown  office  in  King's 
r.cnch,  was  the  usual  officer  to  exhibit  informations.  In  the  exercise 
of  this  function,  he  stood  in  a  relation  to  individuals  similar  to  that 
of  the  attorney  general  to  the  crown.  (Cole  on  Informations,  no; 
Coddard  v.  Smithett,  3  Gray  116.)  But  in  1693,  the  statute  of  4  & 
5  W.  &  M.  c.  18,  relating  to  trespasses  and  batteries,  and  other 
misdemeanors,  was  passed,  for  the  purpose  as  Mr.  Justice  Wilmot 
says,  in  Rex  v.  Marsdcn,  3  Burr.  1817:  "To  prevent  the  master 
of  the  crown  ofiicc  from  vexing  and  oppressing  the  subject,  and  in- 
trusted this  court  with  the  power  of  ins])ccting  the  filing  of  informa- 
tions, and  seeing  that  he  did  not  exercise  his  power  to  the  oppression 
of  the  subject,  or  without  sufficient  ground  and  foundation;  so 
(hat  the  act  was  made  to  check  and  control  the  power  of  the  master 
of  the  crown  office;  not  to  give  him  a  right  to  exercise  a  power 
which  he  never  exercised  before ;  quite  the  contrary."  After  this 
act,  the  ju.'istcr  of  the  crown  office  could   not  file  an   information 


§    4  THE  PARTIES.  4I3 

without  leave.  This  statute  has  been  shown  to  govern  quo  warranto 
informations  by  the  master  of  the  crown  office,  the  fihng  of  which  by 
that  officer  was  not  introduced  but  only  regulated  by  the  statute 
of  9  Anne.     (Cole  on  Informations,  126.) 

This  act  required  the  relator's  name  to  be  mentioned  in  the  infor- 
mation, and  this,  and  the  previous  act  of  W.  &  M.,  requiring  the 
person  at  whose  suggestion  the  suit  had  been  instituted,  to  give  an 
undertaking  for  costs,  should  prosecution  fail,  gave  rise  to  the  prac- 
tice of  filing  quo  warranto  informations,  entitled  on  the  relation 
of  private  persons — the  relator  being  altogether  the  creature  of 
statute.     (Ang.  &  Ames  on  Cor.  §  733;  Cole  on  Informations,  127.) 

But  an  information  against  a  corporation  as  a  body,  to  annul 
its  corporate  existence,  could  not  be  Hied  by  the  master  of  the 
croivn  office.  Such  informations  were  filed  by  the  attorney  general  : 
and  leai'e  zvas  not  required— he  was  the  sole  judge  of  the  pro- 
priety of  filing  the  information.  TJie  law  requiring  leave  of  the  court 
before  an  information  could  be  filed,  applied  only  to  the  master 
of  the  crowii  office.  Rex  v.  Carmathen,  2  Burr.  869 ;  Murphy  v. 
Farmers'  Bank,  20  Pa.  St.  415;  Commonwealth  v.  Turnpike  Co..  6 
B.  Monroe  397.) 

With  us,  the  filing  of  quo  warranto  information,  the  several 
district  attorneys  possess  the  powers  as  well  as  those  usually  exer- 
cised by  the  attorney  general,  as  by  the  master  of  the  crown  office  : 
but  the  statute  preserves,  with  few  exceptions,  the  distinctions 
between  actions  by  them,  acting  ex  officio  in  the  former  capacity, 
and  ex  relatione  in  the  latter.  (Attorney  General  v.  Railroad  Com- 
pany, 9  Vroom,  282 ;  The  State  v.  Stewart,  32  Mo.  379.) 

Our  statute  limits  the  power  of  the  district  attorney,  acting  ex 
officio, _  in  requiring  him  to  get  leave.  But  zvhen  leave  lias  been 
granted,  the  discretionary  power  of  the  court  has  been  expended. 
'(The  State  v.  Brown,  5  R.  I.  6.) 

The  district  attorney  is  the  law  officer  of  the  state,  wnthin  the 
limits  of  his  district,  with  the  powers,  in  the  absence  of  statutory 
regulation,  of  the  attorney  general  at  common  low.  (Constitution 
of  Oregon,  art.  7,  sec.  17.)  Therefore,  zvhen,  as  in  the  case  before 
us,  the  district  attorney  files  a  quo  zvarranto  information,  in  a 
distinctly  state  action,  he  has  as  mucJt  the  sole  control  over  it  as 
the  attorney  general  would  have  in  a  like  case  at  common  lazv.  A 
relator  cannot  be  a  party  to  the  proceeding — is  a  mere  stranger — 
and  if  his  name  is  put  in  the  information,  it  is  surplusage.  (Rex  v. 
Williams,  i  Burr.  408;  The  People  v.  The  Trustees  of  Geneva  Col- 
lege, 5  Wen.  219.) 

The  reason  is  plain ;  the  state,  out  of  its  sovereign  power,  has 
created  the  corporation  for  the  purposes  declared  in  its  charter, 
and  the  saiue  power  must  preside  at  its  dissolution.  The  state  may 
waive  the  forfeiture  of  the  charter,  and  its  power  to  do  so,  acting 


4T4  STATE    V.    VILLAGE    OF    BRADFORD    ET    AL.  §    4 

through  its  attorney  general,  cannot  be  controlled  by  the  court. 
(State  V.  ]\IcConneli,  3  Lea.  (Tenn.)  339;  Commonwealth  v.  Union 
Insurance  Company,  5  Mass.  232 ;  The  People  v.  Attorney  General, 
22  Barb.  117;  The  People  v.  Tobacco  Company,  42  How.  Pr.  162; 
The  People  v.  Fairchild,  8  Hun.  334;  s.  c.  67  N.  Y.  334.) 

In  accord. — Cole  v.  Dyer,  29  Ga.  434 :  Kenney  v.  Consumers'  Gas  Co.. 
142  Mass.  417;  Richman  v.  Adams,  59  N.  J.  L.  289;  Commonwealth  v. 
Allegheny  Bridge  Co.,  20  Pa.  St.  185 ;  State  v.  West  Wisconsin  R.  Co.,  34 
Wis.  197,  208;  People  v.  Colorado,  etc.,  R.  Co.,  8  Colo.  App.  301;  Houston 
V.  Neuse  River,  etc.,  Co.,  53  N.  Car.  477. 


3.     Respondents — Public  corporations. 

STATE  V.  VILLAGE  OF  BRADFORD  et  .\l. 
1859.     Supreme  Court  of  Vermont.     32  \  t.  51.     Supra,  p.  308. 


STATE  V.  BOARD  OF  COMMISSIONERS  OF  ATLANTIC 
HIGHLANDS. 

1888.     Supreme  Court  of  New  Jersey.     50  N.  J.  L.  457;  14  All. 

560. 

Demurrer  to  an  information  in  the  nature  of  a  quo  ivarranto. 

Beasley,  C.  J. — An  information  in  the  nature  of  a  quo  warranto 
was  filed  by  the  attorney  general  against  the  Board  of  Com- 
missioners of  Borough  Commission  of  Atlantic  Highlands,  for  the 
])urposc  of  testing  the  right  of  such  body  to  exercise  the  franchises 
of  a  municipal  corporation.  The  informatiori  shows  that  certain 
persons  took  steps  to  erect  a  portion  of  the  village  of  Atlantic 
Highlands  into  a  corporate  borough  by  the  force  of  the  act  of  the 
legislature  approved  March  7,  1882.  This  statement  is  followed  by 
a  specification  of  the  errors  committed  in  this  formative  procedure, 
wluTcby  it  is  claimed  that  it  became  abortive  and  void.  The 
])rinciiKil  ground  relied  upon  to  sui)port  the  demurrer  was  that  the 
writ  has  not  gone  against  the  proper  party  ;  it  being  insisted  that 
the  alleged  usurping  corporation  could  not  be  made  a  party,  as, 
if  tlic  information  set  forth  tlie  trulli,  (lu're  was  and  is  no  sucb 
cr)rpf)rale  body.  I'ut  this  cxce])tion  is  hypercritical.  The  informa- 
tion slir)ws  a  de  facto  corporation,  and  it  is  not  perceived  how  its 
rigbl  to  exist  and  use  the  jjowers  it  is  exercising  can  otherwise  than 
lias  b( en  doiu-  in  this  case  be  put  to  the  test.    The  writ  could  not  go 


§    4  I'^iJ^  PARTIES.  415 

against  any  of  the  municipal  officers,  on  the  ground  that  they 
have  not  been  duly  elected,  or  on  any  other  account,  have  no 
right  to  their  positions,  because  it  has  been  decided  already,  by  the 
courts,  that  in  such  a  proceeding  the  right  of  the  municipality 
to  exist  as  a  corporate  body  cannot  be  thus  collaterally  called  into 
question.  The  corporation,  as  at  present  organized,  is  the  organ, 
by  which  the  community,  by  common  consent,  is  represented,  and  it 
is  the  community  that  is  concerned  in  this  procedure,  and  not 
any  particular  official  or  other  class  of  citizens.  As  the  body  of 
the  people  cannot  be  made  parties  as  individuals,  it  would  seem  a 
necessity  to  treat  the  de  facto  ruling  body,  established  by  them- 
selves, as  their  legal  representative.  The  cases  with  respect  to  in- 
formations against  municipalities  do  not  appear  to  settle  definitely 
the  course  to  be  pursued ;  but  we  think  the  method  adopted  in 
the  present  instance,  as  far  as  regards  the  question  as  to  parties 
to  the  procedure,  is  the  proper  one.  This  was  the  course  pursued 
in  the  case  of  the  State  v.  Village  of  Bradford,  32  Vt.  50,  in  which 
case  the  corporate  body  was  one  of  the  defendants,  and  a  judgment 
was  rendered  dissolving  such  dc  facto  corporation.  High,  Ex.  Leg. 
Rem.  §  684.    Let  the  demurrer  be  overruled. 

The  other  points  argued  have  been  examined,  but  we  think  none 
of  them  have  any  weight. 

See  also  Rex  v.  Amery,  2  Term  R.  515,  566;  People  v.  City  of  Riverside, 
66  Cal.  288;  State  v.  Tracy,  48  Minn.  497;  State  v.  North,  42  Conn.  79; 
People  V.  Clark,  70  N.   Y.  518. 


PEOPLE  EX  REL.  WEBBER  et  al.  v.  CITY  OF  SPRING  VAL- 
LEY ET  AL. 

1889.     Supreme  Court  of  Illinois.     129  111.  169 ;  21  N.  E.  843. 

(Information  in  quo  zvarranto  against  the  city  of  Spring  Valley 
and  C.  J.  Devlin  as  mayor  of  said  city,  charging  the  usurpation 
of  municipal  franchises.  Respondents  demurred  and  upon  being 
overruled  filed  pleas  to  the  information.  The  state  thereupon  filed 
a  replication  and  respondents  again  demurred.  The  Supreme  Court, 
through  Magruder,  J.,  after  holding  that  the  demurrers  to  the 
replication  were  properly  sustained,  continued.) 

Magruder^  J. — *  *  *  In  substance  therefore,  all  the  replications 
attacked  the  existence  of  the  city  of  Spring  Valley  as  a  corporation, 
fiut  this  was  a  departure  from  the  information,  or,  if  not  a  technical 
departure  in  pleading,  it  amounted  to  a  contradiction  of  the  informa- 
tion by  the  replication,  because  the  information  by  making  the  city 
of  Spring  Valley  a  party  defendant,  thereby  admitted  its  existence 


4l6  WEBBER    V.    CITY    OF    SPRING    VALLEY.  §    4 

as  a  corporation.  When  an  existing  corporation  abuses  any  of 
its  franchises,  or  usurps  franchises  zvhich  do  not  belong  to  it, 
the  information  should  be  against  the  corporation  as  such.  But  zvhen 
a  body  of  men  or  number  of  individuals  nnlazvfully  assume  to  be  a 
corporation,  the  information  should  be  against  them  as  individuals, 
and  not  by  their  corporate  name.  Dillon,  in  his  work  on  Municipal 
Corporations,  (A'okime  2,  3d  ed.  §  895),  says :  "It  is  held  in  England 
that,  if  the  information  be  for  usurping  a  franchise  by  a  corporation, 
it  should  be  against  the  corporation ;  but,  if  for  usurping  the 
franchise  to  be  a  corporation,  it  should  be  against  the  particular 
persons  guilty  of  the  usurpation."  People  v.  Richardson,  4  Cow. 
97;  People  V.  Railroad  Company,  15  Wend.  113;  People  v.  Super- 
visors, 41  Mich.  647,  2  N.  W.  904;  State  v.  Coke  Co.  18  O.  St. 
262. 

The  weight  of  authority  in  this  country  "may  now  be  regarded 
as  sustaining  the  proposition  that  the  effect  of  filing  an  informa- 
tion against  a  corporation  by  its  corporate  name,  to  procure  a 
forfeiture  of  its  charter,  or  to  compel  it  to  disclose  by  what  au- 
thority it  exercises  its  corporate  franchises,  is  to  admit  the  existence 
of  the  corporation.  When  therefore,  the  information  is  filed  against 
the  respondent,  in  its  corporate  name,  and  process  is  issued  and 
served  accordingly,  and  the  respondent  appears,  and  pleads  in  the 
same  corporate  character,  its  corporate  existence  cannot  afterwards 
be  controverted."  High,  Ex.  Rem.  (2d.  ed.  §  61)  ;  State  v.  Bank,  33 
IVIiss.  474;  People  v.  Railroad  Co.,  supra;  State  v.  Coke  Co.,  supra. 
If  in  the  present  case,  the  information  had  charged  the  city  of  Spring 
Valley  with  exercising  a  franchise  not  authorized  by  its  charter,  it 
would  have  been  proper  to  make  the  city  a  party  defendant  by  its  cor- 
porate name.  But,  as  the  infonuation  calls  in  question  the  corporate 
existence  of  the  city,  it  should  have  been  brought  against  the  officials 
or  individuals  assuming  to  exercise  the  corporate  powers.  Some  of 
the  authorities  seem  to  draw  a  distinction  between  private  corpora- 
tions and  municipal  corporations,  and  to  hold  that  an  information 
may  be  brought  against  a  municipal  corporation  by  its  corporate 
name,  even  where  its  corporate  existence  is  challenged,  the  proceed- 
ing in  such  case  being  against  the  city  as  a  corporation  de  facto,  and 
not  as  a  con)oration  de  jure.  State  v.  Bradford,  32  Vt.  50;  People 
V.  City  of  Riverside,  66  Cal.  288,  5  Pac.  350.  We  do  not  think  how- 
ever, that  an  exception  to  the  general  rule  can  be  held  to  exist  in  this 
state  in  the  case  of  municipal  corporations. 

In  the  city  of  Chicago  v.  People,  80  111.  496,  the  proceeding  was 
an  information  in  the  nature  of  quo  zvarrauto  against  the  city  of 
Chicago,  rcrpiiring  it  to  show  by  what  authority  it  exercised  thir 
franchises  conferred  by  the  city  incorporation  act  of  1872,  the 
charge  being  that  the  question  of  luinority  representation  was  not 
submitted  at  the  election  to  determine   the  question  of  incorpora- 


J;    4  THE  PARTIES.  417 

tion,  and  that  such  election  was  invahd  for  iraud  and  other  irregu- 
larities. The  right  to  bring  the  information  against  the  cit}'  of 
Chicago  CO  nomine  was  not  discussed.  On  the  contrary,  it  is  there 
said :  ''It  has  not  been  necessary  to  decide  whether  this  proceed- 
ing will  lie  against  a  municipal  corporation  as  a  body."  It  must  be 
remembered  also  that,  in  that  case,  the  question  was  whether  the 
city  of  Chicago  had  organized  under  the  incorporation  act  of  1872 
by  legally  adopting  that  act  as  its  charter.  The  city  of  Chicago 
existed  under  another  charter  prior  to  the  election  upon  the  question 
of  becoming  incorporated  under  the  act  of  1(872.  If  that  election  had 
been  against  incor])oration,  that  city  would  still  have  existed  under  its 
old  charter.  1  here  fore  the  party  defendant  to  the  quo  zvarranto 
proceeding  was  a  city  already  existing,  and  not  one  deriving  its  sole 
existence  from  the  election  under  discussion  in  that  case.  Here, 
however,  the  city  of  Spring  \'"alley,  had  no  corporate  being  prior 
to  its  incorporation,  or  attempted  incorporation,  under  the  act  of 
1872.  When  it  was  made  defendant  to  the  information  its  existence 
as  a  corporation  under  that  act  was  admitted.  In  Cheshire  v.  Peo- 
ple, 116  111.  493,  6  N.  E.  486,  the  information  was  against  certain 
persons  assuming  to  act  as  directors  of  a  school  district.  The  de- 
fendants demurred  to  the  information,  and  upon  the  demurrer  being 
overruled,  they  elected  to  stand  by  the  information.  One  of  the 
objections  to  the  information  was  that  the  school  district  was  not 
made  a  party.  It  was  there  held  that,  as  the  information  proceeded 
upon  the  hypothesis,  that  there  was  no  corporation  in  law  by  the 
name  of  "School  District  No.  9"  it  would  have  been  impossible 
to  make  the  corporation  a  party  and  that  the  persons  assuming 
•  to  act  as  directors  of  the  district  were  "the  only  parties  that  need 
be  before  the  court  to  test  the  validity  of  the  organization  of  the 
district." 

Moreover  the  statute  of  this  state  in  relation  to  quo  zvarranto 
(Starr  &  C.  St.  c.  112,  p.  1871),  provides  that  the  information  may 
be  filed  where  "any  association  or  number  of  persons  shall  act 
within  this  state  as  a  corporation  without  being  legally  incorpo- 
rated." This  language  implies  that,  where  the  legal  existence  of 
the  corporation  itself  is  questioned,  the  proper  defendants  to. the 
information  are  the  persons  who  assumed  to  act  as  a  cor- 
poration. The  subsequent  clauses  indicate  that  the  corporation 
itself  is  a  proper  defendant,  when  it  does  or  omits  any 
act  which  amounts  to  a  surrender  or  forfeiture  of  its  rights  and 
privileges  as  a  corporation,  or  exercises  powers  not  conferred 
by  law'."  It  is  claimed  however  that  by  dismissing  the  informa- 
tion the  trial  court  carried  the  demurrers  to  the  replications  back 
to  the  information,  and  that  this  was  erroneous  because  the  defend- 
ants had  demurred  to  the  information,  and  their  demurrers  had  been 
overruled.     Unquestionably  the  general  rule  is  that  the  court  will 


4l8  WEBBER    V.    CITY    OF    SPRING    VALLEY.  §    4 

not,  in  carrying  the  demurrer  back,  sustain  it  to  a  pleading  of  the 
adverse  party  to  which  a  demurrer  thereto  has  already  been  over- 
ruled. Culver  V.  Bank,  64  111.  528.  But,  if  the  declaration  is  so 
defective  as  not  to  support  the  judgment,  that  may  be  availed  of 
by  a  motion  to  arrest,  or  on  error,  even  after  a  demurrer  thereto 
has  been  overruled,  and  the  defendant  has  pleaded  over.  Kipp  v. 
Lichtenstein,  79  111.  358;  Stearns  v.  Cope,  109  111.  340.  In  the 
present  case  the  declaration  is  so  defective  that  it  could  not  support 
the  judgment.  The  judgment  would  be  one  of  ouster  against 
the  corporation  for  not  having  been  legally  organized.  But  the  dec- 
laration admits  that  it  was  legally  organized.  The  judgment  would 
be  inconsistent  with  and  contradictory  of  the  declaration.  It  would 
be  based  upon  the  non-existence  of  a  corporation,  whose  existence 
the  declaration  admits.  In  State  v.  Coke  Co.,  supra,  the  pleadings 
were  substantially  the  same  as  in  the  present  case.  The  information 
v.-as  against  the  gas  company  as  a  corporation.  A  replication  of 
the  state  to  one  of  the  pleas  of  the  defendant,  in  substance,  denied 
the  existence  of  the  corporation.  The  company  demurred  to  the 
replication  and  the  demurrer  was  sustained.  In  that  case  the  court 
say :  "It  is  claimed  by  the  counsel  for  the  defendant  that  this  repli- 
cation is  a  departure  in  pleading ;  that  the  information  having  been 
filed  and  process  issued  against  the  defendant  by  its  corporate  name 
and  not  against  individuals  for  the  usurpation  of  the  franchise  to  be 
a  corporation,  the  fact  that  the  defendant  has  or  once  had  a  legal 
existence  as  a  corporation  is  admitted  and  cannot  therefore  be 
drawn  in  question  by  the  state  in  its  subsequent  pleadings  in  the 
case.  *  *  *  In  this  country  we  think,  the  great  weight  of  au- 
thority favors  the  ground  taken  by  counsel  for  defendant.  *  *  * 
We  are  aware  of  no  case  in  this  country  in  which  a  body  sued  as 
a  corporation,  has  been  ousted  of  the  franchise  to  be  a  corporation, 
on  the  ground  that  it  never  had  a  legal  corporate  existence." 
Inasmuch,  therefore,  as  any  judgment  which  may  have  been  entered 
in  favor  of  the  people  under  the  pleadings  in  this  record  could  have 
been  arrested  on  motion  or  reversed  on  error,  the  court  below 
properly  carried  the  demurrers  to  the  replications  back  to  the  infor- 
mation, and  committed  no  error  in  dismissing  the  information.  The 
latter  would  not  support  the  judgment  even  if  the  pleas  are  defective 
for  the  reasons  urged  by  counsel  for  the  defendants.  If  the  de- 
murrers to  the  replications  had  been  carried  back  to  the  pleas,  and 
judgment  had  been  rendered  against  the  defendants  upon  the  in- 
formation,  it  would  have  been  error  not  to  sustain  a  motion  in  arrest 
of  the  judgment. 

After  tlie  demurrers  to  the  replication  had  been  sustained,  and 
dcfcnflants  liad  moved  for  judgment  on  those  demurrers,  the  people 
mnvcfl  to  amend  tlie  informnlinn  by  inserting  after  the  words,  "The 
City  of  Spring  Vallcw"  Ibc  words,  "never  having  lawfully  and 
legally  Ix-cn  incorporated  under  tlie  laws  of  the  state  of  Illinois." 


§    4  THE  PARTIES.  419 

The  trial  court  overruled  the  motion  to  amend,  and  its  action  in  this 
regard  is  complained  of  as  error.  The  city  of  Spring  Valley  as 
a  corporation,  would  still  have  been  a  party  defendant,  notwithstand- 
ing the  allegation  that  it  was  not  legally  incorporated.  The  informa- 
tion would  have  been  inconsistent  with  itself  in  admitting  the 
existence  of  the  city  and  at  the  same  time  denying  such  existence. 
Hence  the  people  suffered  no  injury  from  the  refusal  of  leave  to 
amend  in  the  respect  indicated. 

Appellees  have  made  a  motion  to  dismiss  this  writ  of  error  on 
account  of  want  of  jurisdiction  of  this  court.  The  motion  was 
reserved  when  the  cause  was  taken.  The  right  to  exercise  the 
municipal  power  and  privileges,  conferred  by  the  legislature  upon 
cities  under  the  act  for  the  incorporation  of  cities  and  villages,  is  a 
franchise  of  the  highest  character.  Such  right  is  directly  involved 
in  the  issues  made  by  the  pleadings  in  this  case.  Therefore  the 
writ  of  error  has  been  properly  sued  out  from  this  court  directly  to 
the  circuit  court.  The  motion  to  dismiss  is  accordingly  denied.  Up- 
on more  mature  reflection  we  are  satisfied  that,  where  the  right  to 
hold  a  municipal  office  depends  upon  the  legality  of  the  incorpora- 
tion of  the  municipality  under  the  acts  of  the  legislature,  a  franchise 
is  involved  in  a  quo  warranto  proceeding  to  test  such  right.  In  so 
far  as  the  cases  of  the  People  v.  Holtz,  92  111.  426,  and  Graham  v. 
People,  104  111.  321,  hold  a  contrary  view  they  are  overruled.  The 
judgment  of  the  circuit  court  is  affirmed. 

See  in  accord  People  v.  City  of  Peoria,  166  111.  517,  522;  State  v.  Flem- 
ing 158  IMo.  558;  State  v.  Uridil,  37  Neb.  371;  State  v.  Independent  School 
Dist.,  44  Iowa,  227;  Ewing  v.  State,  81  Tex.  172;  Territory  v.  Armstrong, 
6  Dak.  226;  State  v.  Simkins,  JJ  Iowa,  676;  State  v.  Hall,  iii  N.  Car.  369. 


4.     Respondents — Private  Corporations. 

STATE  EX  REL.  ATTORNEY  GENERAL  v.  CINCINNATI  GAS 
LIGHT  &  COKE  COMPANY. 

1868.     Supreme   Court   of   Opiio.     18   O.    St.   262. 

(Information  in  the  nature  of  quo  zuarranfo  filed  by  the  attorney 
general  against  respondent  in  its  corporate  name,  charging  the 
usurpation  of  corporate  franchise.  Respondent  pleaded  its  corporate 
capacity,  setting  forth  its  charter.  The  state  then,  by  replication, 
denied  respondent's  corporate  existence  and  res]5ondent  demurred.) 

Scott,  J. — This  case  came  before  us  at  the  last  term  of  this 
court  upon  demurrer  to  the  third  and  fourth  pleas  filed  herein  by  the 


420     ATTORXEY   GENERAL  V.    CINCIXNATI   GAS   LIGHT   &   COKE  CO.      §    4 

defendant.  That  demurrer  was  sustained  as  to  both  the  pleas, 
and  at  the  present  term  the  defendant  has  filed  a  fifth  plea,  and 
various  issues  at  law  have  been  raised  by  the  demurrers  of  the 
respective  parties  to  further  pleadings  in  the  case,  all  which  are 
now  submitted  for  our  detemiination. 

We  shall  consider  the  questions  arising  upon  the  several  demur- 
rers in  the  order  in  which  they  are  raised  by  the  pleadings. 

The  first  replication  of  the  attorney  general  on  behalf  of  the 
state,  to  the  first  and  second  pleas  of  the  defendant,  is  that  "neither 
the  Cincinnati  Gas-Light  &  Coke  Company  nor  the  persons  acting 
under  such  name  and  style,  are  the  persons  named  in  said  act 
of  the  general  assembly,  nor  their  associates,  nor  the  successors 
of  such  persons,  or  their  associates,"  with  a  conclusion  to  the 
country. 

To  this  replication  there  is  a  general  demurrer  by  the  defendant. 

It  is  claimed  by  counsel  for  the  defendant  that  this  replication 
is  a  departure  in  pleading ;  that  the  information  having  been  filed 
and  process  issued  against  the  defendant  by  its  corporate  name, 
and  not  against  individuals,  as  usurpers  of  the  franchise  to  be  a 
corporation,  the  fact  that  the  defendant  has,  or  once  had  a  legal 
existence  as  a  corporation  is  admitted,  and  cannot  therefore  be 
drawn  in  question  by  the  state,  in  its  subsequent  pleadings  in  the 
case. 

On  the  other  hand,  it  is  argued  by  counsel  for  the  state,  that  an 
information  in  the  nature  of  quo  worraiifo  will  lie  on  the  relation 
of  the  attorney  general  against  a  de  facto  corporation,  in  its  assumed 
corporate  name,  to  compel  it  to  show  by  wdiat  title  it  exercises  the 
franchise  to  be  a  corporation. 

This  proceeding  is  instituted  under  the  authority  given  by  the  act 
of  May  I,  1852,  "to  prescribe  the  duties  of  the  attorney  general," 
(S.  &'C.  Stats.  88),  and  that  authority  is  to  be  found  if  at  all, 
in  sections  9,  10  &  12  of  the  act. 

Section  9  is  as  follows :  "That  upon  complaint  made  to  him 
that  any  incorporated  company  has  offended  against  the  laws  of  the  ■ 
state,  misused  its  corporate  authority  or  any  of  its  franchises  and 
]jrivileges,  assumed  franchises  and  privileges  not  granted  to  it,  or 
surrendered  abandoned,  or  forfeited  its  corporate  authority,  or 
any  of  its  franchises  or  privileges,  he  shall  inquire  into  the  complaint, 
and  if  he  should  find  probable  cause  for  so  doing,  cause  proceedings 
in  the  nature  of  quo  zvarranto  or  writ  of  scire  facias  to  be  insti- 
tuted against  it " 

Scrtirm  10  is  in  the  same  terms,  cxcc]it  that  it  authorizes  the 
action  of  the  attorney  general  to  be  taken  of  his  own  motion,  where 
iho  knowledge  comes  to  him  otherwise  than  by  complaint. 

These  sections  authorize  ])roccedings  to  be  instituted  only  against 
nn  iucrirporatrd  cr)nipanv;  rind  when  the  attorney  general  proceeds 


§    4  THE  PARTIES.  421 

under  them,  he  clearly  atlmite  thereby  that  the  defendant  has 
been  incorporated. 

That  portion  of  section  12  which  bears  upon  the  question 
is  as  follows :  "Whenever  any  person  or  number  of  persons  shall 
act  or  assume  to  act  as  a  corporation  within  this  state  without  being 
legally  authorized  so  to  do,  the  attorney  general  may  upon  com- 
plaint made  to  him,  or  upon  his  own  motion,  cause  proceedings 
in  the  nature  of  quo  zvarranto,  to  be  instituted,  and  the  same  dili- 
gently prosecuted  to  judgment." 

This  part  of  the  act  authorizes  proceedings  to  be  instituted 
when  a  natural  person  or  any  number  of  persons,  without  legal  au- 
thority assume  to  act  as  a  corporation  and  would  seem  to  be  the  only 
authority  under  wdiich  the  fact  of  incorporation  can  be  drawn  in 
question.  The  mode  in  which  proceedings  are  to  be  instituted 
is  not,  however,  expressly  prescribed. 

In  the  general  quo  warranto  act  of  1868  a  similar  distinction  is 
made.  The  first  section  authorizes  an  information  to  be  filed  in 
the  nature  of  a  quo  zvarranto,  by  the  prosecuting  attorney,  "when 
any  association  or  persons  shall  act  as  a  corporation  within  this 
state  without  being  legally  incorporated ;"  while  the  eighth  section 
authorizes  a  similar  information  to  be  filed  "against  any  corporate 
body"  when  it  has  violated  the  provisions  of  its  charter,  forfeited  its 
franchises  by  non-user,  surrendered  or  misused  its  corporate 
franchises.  In  giving  a  construction  to  this  statute  in  the  case  of  the 
Granville  Alexandrian  Society,  11  Ohio  8,  it  was  said  by  the  court 
that  the  information  under  the  first  section  must  be  against  the 
natural  persons  who  assume  to  act  as  a  corporation,  but  imder 
the  eighth  section  it  must  be  against  the  corporation. 

As  to  the  rule  of  the  common  law,  the  authorities,  English  and 
American,  bearing  upon  this  question  are  not  so  explicit  and  uni- 
form as  to  relieve  the  subject  from  all  doubt.  Much  learning 
and  research  have,  from  time  to  time,  been  show^n  in  its  discussion.. 

We  do  not  propose  to  examine  in  detail  the  cases  cited  in  argu- 
ment. The  most  of  the  cases  referred  to  by  counsel  for  the  state 
were  informations  against  individuals.  In  the  famous  case  of  the 
City  of  London,  8  Howell's  State  trials,  1039,  ^'''^  question  was  pre- 
sented and  ably  argued,  but  was  left  undetermined  by  the  court, 
as  the  judgment  was  that  the  city  had  forfeited  its  corporate  fran- 
chises. 

In  Rex  V.  City  of  Chester,  cited  in  Rex  v,  Amory,  2  Term  565, 
there  seems  to  have  been  a  judgment  against  the  city  of  Chester 
on  default,  for  failing  to  show  its  right  to  be  a  corporation. 

In  this  country,  we  think,  the  great  weight  of  authority  favors 
the  ground  taken  by  the  counsel  for  defendant.  In  the  People 
V.  Sar.  &  Reus.  R.  R.  Co.,  15  Wend.  114,  it  was  held  that  "an 
information  in  the  nature  of  quo  zvarranto  filed,  under  the  revised 


422      ATTORNEY  GENERAL  V.    CINCINNATI   GAS   LIGHT   &  COKE   CO.      §    4 

statutes^,  against  a  corporation  by  its  corporate  name,  admits  the 
existence  of  the  corporation  or  that  it  once  had  a  legal  existence." 
The  revised  statutes  of  New  York,  it  is  true,  differ  from  ours,  in  pre- 
scribing the  different  judgments  to  be  rendered  in  proceedings 
against  corporations  and  against  individuals.  But  this  distinction  in 
the  judgments  has  its  foundation  in  the  common  law ;  and,  in  that 
case,  C.  J.  Savage  quotes,  with  approbation,  from  the  language 
of  Sir  Robert  Sawyer  in  Rex' v.  City  of  London.  He  says,  "The 
rule  is  this :  when  it  clearly  appears  to  the  court  that  a  liberty  is 
usurped  by  wrong,  and  upon  no  title,  judgment  only  of  ouster  shall 
be  entered.  But  when  it  appears  that  a  liberty  has  been  granted, 
but  has  been  misused,  judgment  of  seizure  into  the  king's  hands 
shall  be  given.  The  reason  is  given ;  that  which  came  from  the 
king  is  returned  there  by  seizure ;  but  that  which  never  came  from 
him  but  was  usurped,  shall  be  declared  null  and  void.  Judgment 
of  ouster  is  rendered  against  individuals  for  unlawfully  assuming 
to  be  a  corporation.  It  is  rendered  against  corporations  for  exercis- 
ing a  franchise  not  authorized  by  their  charter.  In  such  case,  the 
corporation  is  ousted  of  such  franchise  but  not  of  being  a  corpora- 
tion. Judgment  of  seizure  is  given  against  a  corporation  for  a  for- 
feiture of  its  corporate  privileges." 

So,  in  a  note  to  the  case  of  The  People  v.  Richardson,  4  Cow.  97 
it  is  said  by  a  learned  judge :  "If  the  information  be  for  using 
a  franchise  by  a  corporation,  it  should  be  against  the  corporation.  If 
for  usurping  to  be  a  corporation,  it  should  be  against  the  particular 
persons."  To  the  same  effect  is  Angell  &  Ames  on  Corporations, 
§  756.  See,  also.  Commercial  Bank  of  Natchez  v.  The  State  of  Mis- 
sissippi, 6  Sm.  &  Marsh.  599. 

The  form  of  the  information  in  this  case  is  certainly  not  without 
sanction.  23  Wend.  193 ;  6  Cowen  196.  But  practically  it  seems 
to  have  been  adopted  and  used  only  for  the  purpose  of  requiring  the 
defendant  to  show  its  charter,  in  order  that  the  extent  of  the  fran- 
chises therein  granted  might  be  made  the  subject  of  inquiry. 

We  are  aware  of  no  case  in  this  country,  in  which  a  body  sued 
as  a  corporation,  has  been  ousted  of  the  franchise  to  be  a  corpora- 
tion, on  the  ground  that  it  never  had  a  legal  corporate  existence. 
.\nd,  in  England,  the  only  case  of  that  kind  appears  to  be  that  of 
Rex  V.  Cbcster;  and  it  is  worthy  of  consideration  that  in  that  case, 
the  defendant  was  a  municipal  and  not  a  trading  corporation.  Where 
the  vihabifants  of  a  city  are  defendants,  the  difHculty  in  proeeeding 
a^^ainst  them  miiiht,  perhaps,  create  an  exception  to  the  i:;eneral 
rule.  I'ut  on  principal  it  certainly  seems  irregular  that  judgment 
shDulfl  be  asked  against  a  defendant  whose  very  existence  the  plain- 
tiff denies. 

AiKJ  if  the  information  and  process  in  tbis  case  could  be  re- 
garfjcd  as  proceedings  against  usurping  individuals,  by  a  name 
whirb    tlicv   have   assumed,   the   case   wf)uld    not    lie   relieved    from 


§    4  THE  TARTIES.  423 

difficulty.  For,  in  that  case,  should  judgment  be  rendered  for  the  de- 
fendants on  the  question  of  corporate  existence,  the  state  could  pro- 
ceed no  further.  The  corporation  not  being  a  party,  no  judgment  of 
ouster  could  pass  against  it,  for  exercising  franchises  not  author- 
ized by  charter.  But  the  present  information  is  against  the  defendant 
by  its  corporate  name ;  process  has  been  issued  and  served  upon  it 
accordingly ;  and  in  the  same  corporate  character  it  has  appeared 
and  pleaded.  We  think  it  too  late  to  question  its  corporate  existence. 
We  see  no  ground  for  discriminating,  on  this  question,  between  the 
act  which  governs  the  proceeding  in  the  present  case,  and  the 
general  quo  warranto  act.  The  practice,  under  both  acts,  has  been 
uniformly  the  same ;  and  persons  assuming,  without  authority,  to  act 
as  a  corporation  have  never  been  proceeded  against  otherwise  than 
individually. 

The  demurrer  of  the  defendant  to  this  replication  will  accordingly 
be  sustained.     *     *     * 


PEOPLE  EX  REi..  ATTORNEY  GENERAL,  v.  LELAND  T. 

STANFORD  et  al.  AND  THE  POTRERO  &  BAY 

VIEW  RAILROAD  COMPANY. 

1888.     Supreme  Court  of  California,     yy  Cal.  300;  19  Pac.  693. 

This  case  was  decided  in  department  i,  and  a  rehearing  granted. 
It  was  held  by  the  department  that  the  second  count  of  the 
complaint  was  bad,  and  that  it  was  error  to  overrule  the  demurrer 
thereto.  We  adhere  to  this  conclusion,  and  to  that  extent  the 
opinion  of  the  department  is  adopted  as  the  opinion  of  the  court. 

There  was  also  a  demurrer  to  the  first  count  of  the  complaint, 
which  was  overruled  by  the  court  below.  It  is  urged  upon  us  that 
this  count  of  the  complaint  is  bad,  for  the  reasons  that  conclusions 
are  pleaded,  and  not  the  facts.  The  pleading  is  an  anomaly.  It 
sues  the  Potrero  &  Bay  View  Railroad  Company  as  one  of  the 
defendants,  and  at  the  same  time  alleges  that  it  is  not  a  corpora- 
tion. It  alleges  that  the  private  individuals  named  as  defend- 
ants, and  the  Potrero  and  Bay  View  Railroad  Company,  are 
falsely  claiming  that  there  is  such  a  corporation,  and  that  they 
have  unlawfully  held  and  exercised,  and  still  do  exercise  and  claim 
and  hold  unlawfully,  divers  powers,  etc.  It  is  well  settled  that 
a  corporation  cannot  be  sued  as  such,  and  brought  into  court,  and  the 
action  maintained  against  it  on  the  ground  that  it  is  not  a  corpora- 
tion. If  it  is  intended  to  draw  in  question  the  franchises  of  the 
corporation,  the  proceedings  mu.=<-  be  aeainst  the  individuals  who 
usurp  the  franchise.  If  it  is  claimed  that  the  corporation  is  usurping 
privileges  and  powers  not  belonging  to  it,  the  corporation  i":  the 


424  ATTORNEY    GENERAL    V.    LELAND    T.    STANFORD    ET    AL,  §    4 

proper  and  onlv  proper  partv.  Ang.  &  A.  Cor.  §  756 ;  Boone,  Cor. 
§§  162,  163;  State  V.  Coke  Co.,  18  O.  St.  262;  People  v.  R.  R. 
Co.,  15  Wend.  113;  Draining  Co.  v.  State,  43  Ind.  236.  By  making 
the  corporation  a  party  it  is  admitted  that  it  once  had  an  existence. 
Ang.  &  Ames  Cor.  §  756.  In  Draining  Co.  v.  State,  supra,  the  court 
says :  "This  first  paragraph  was  clearly  bad.  It  is  not  against 
certain  persons  claiming  to  be  a  corporation,  but  against  the  cor- 
poration by  its  corporate  name.  It  is  brought  into  a  court  as  a 
corporation,  to  answer  the  allegation  that  it  is  not  and  never  was 
a  corporation.  When  a  corporation  is  brought  into  court  by  its 
corporate  name,  its  existence  is  thereby  adniitted."  In  this  case, 
the  corporation  being  made  a  party,  its  existence  is  admitted.  It  must 
follow,  therefore,  that  there  is  no  cause  of  action  stated  as  against 
it.  But  there  are  other  defendants  sued  jointly  with  it,  and  charged 
with  having,  jointly  with  such  corporation,  usurped  the  rights  of  a 
corporation,  etc.  There  is  no  question  made  in  the  record  or  in  the 
briefs  as  to  the  misjoinder  of  these  parties.  But  we  are  clear  that 
the  people  cannot  bring  both  a  corporation  and  the  individuals 
who  compose  it  before  the  court  by  information  in  the  nature  of 
quo  zi'arraufo,  and  claim  the  non-existence  of  the  corporation, 
thus  brought  before  the  court,  and  that  the  other  defendants  jointly 
with  it,  are  claiming  to  be  and  exercise  the  right  and  privileges 
of  such  corporation.  To  permit  such  a  course  would  be  subversive 
of  all  rules  of  pleading.  If  we  are  right  in  the  position  taken,  that 
by  suing  the  corporation  as  such  its  existence  is  admitted,  this 
is  an  end  of  the  matter,  so  far  as  this  count  of  the  complaint  is 
concerned,  for  the  reason  that  the  whole  force  of  its  allegations, 
as  against  the  individual  defendants,  rests  upon  the  sole  ground 
that  no  such  corporation  exists. 

If  the  complaint  can  be  defended  on  the  ground  that  it  admits 
that  such  a  corporation  once  existed,  but  has  ceased  to  exist,  it 
IS  open  to  the  objection  made  to  it,  that  it  does  not  state  the  means 
showing  how  and  by  what  means  it  has  ceased  to  exist.  We  are 
of  the  opinion  that  it  would  be  sufficient,  in  an  action  against  indi- 
viduals, charging  that  they  arc  wrongfully  claiming  to  act  as  a 
corporation,  to  allege  in  general  terms,  that  there  never  was  such  a 
corporation.  In  such  case  the  allegation  that  there  never  was  such 
corporation  covers  the  whole  ground.  Nothing  can  be  added  to  this 
general  statement  which  is  in  itself  an  allegation  of  fact.  We  are 
ef|ually  clear  that  where  the  existence  of  the  corporation  is  ex- 
pressly averred,  or  is  admitted,  it  is  not  sufficient  to  allege  that  it 
has  ccascfl  to  exist.  The  facts  showing  that  its  existence  has 
terminated  must  be  set  forth  ;  and  if  the  claim  is  that  the  corporation 
is  acting  as  such,  but  the  jiroceedings  under  which  it  is  acting  are 
defective,  the  facts  showing  that  it  is  so  claiming  to  act,  and  the 
defects  claimed  to  exist,  should  be  set  out  si){'rirically.    Taking  cither 


§    4  THE  PARTIES.  425 

view  of  the  complaint,  therefore,  we  must  hold  this  count  to  be 
bad,  and  that  the  court  below  erred  in  overruling  the  demurrer 
to  it. 

There  was  an  answer  to  the  complaint,  to  which  a  demurrer 
was  sustained.  Notwithstanding  what  was  said  in  the  opinion  in 
department,  we  are  constrained  to  hold  that  this  was  error.  The 
answer  for  each  and  all  of  the  defendants  jointly  and  severally 
and  specifically  denies  that  "the  defendants  or  any  of  them,  claim- 
ing to  be  the  said  Potrero  &  Bay  View  Railroad  Company,  have 
for  a  long  time,  or  do  now,  or  at  any  time  have  unlawfully  claimed 
or  unlawfully  exercised  the  franchises,  powers  or  privileges  in  said 
city  and  county  in  this  behalf  in  said  complaint  alleged,  or  any 
franchise,  power  or  privilege."  The  other  material  allegations  of 
the  complaint  are  denied  in  like  manner.  It  is  urged  that  in  an  action 
of  this  kind  it  is  not  enough  for  the  defendants  to  deny  the  allega- 
tions of  the  complaint,  for  the  reason  that  the  writ  requires  them 
to  show  affirmatively  by  what  right  they  are  exercising  the  fran- 
chises, and  so  it  is  held  in  department.  This  is  true  where  it-  is  admit- 
ted, or  not  denied,  that  they  are  exercising  the  rights  and  priv- 
ileges alleged,  and  attempt  to  establish  their  right  to  do  so.  High, 
Ex  Leg.  Rem.   §§   712,  716. 

But  the  defendants,  whether  it  is  the  corporation  or  individuals, 
who  are  alleged  to  be  wrongfully  claiming  to  be  such,  may,  instead  of 
justifying  their  claim,  deny  that  they  are  making  such  claim  and  ex- 
ercising such  privileges  and  rights  alleged.  It  is  certainly  not  neces- 
sary to  justify  their  right  to  lay  down  and  operate  a  railroad  when 
they  deny  specifically  that  they  are  doing  any  such  thing.  The  author- 
ities cited  in  the  former  opinion  are  to  the  effect  that  the  people 
are  not  bound  to  prove  anything  where  the  defendants  attempt 
to  justify  their  right  or  disclaim.  2  Dill.  Mun.  Cor.  (3d  ed.) 
§  893 ;  Ang.  &  Ames  Cor.  §  756.  But  these,  authorities  are  only 
applicable  where  it  is  admitted,  or  not  denied,  that  the  defendants 
are  exercising  the  franchises,  and  the  question  is  as  to  the  right 
to  exercise  them.  That  is  not  the  case  here.  The  issue  presented 
is  not  one  of  the  right  to  exercise  a  franchise,  but  whether  it  is 
being  exercised.  The  impropriety  of  attempting  to  join  the  corpora- 
tion and  the  individuals  alleged  to  be  acting  as  such  in  the  same 
action,  is  thus  made  manifest.  It  is  impossible  that  both  could  be 
doing  the  acts  alleged.  That  the  individual  defendants  are  in  the 
wrong,  as  alleged,  can  only  be  established  by  showing  that  there  is 
no  such  corporation,  and  if  the  corporation  does  exist,  and  is  itself 
exercising  the  franchises  complained  of,  the  individuals  charged 
may  truthfully,  and  with  perfect  propriety  deny  that  thev  are 
exercising  such  franchises;  and  such  a  denial,  it  seems  to  us,  is  a 
complete  defense,  as  to  them,  to  the  action.  In  this  case,  thev 
not  only  deny  that  they  as  individuals,  are  doing  the  acts  or  exer- 


426    ■  ATTORNEY  GENERAL  V.  LELAND  T.  STANFORD  ET  AL.     §  4 

cising  the  privileges,  set  forth  in  the  complaint,  but  allege  affirma- 
tively that  "the  Potrero  and  Bay  View  Railroad  Company  was  and 
is  a  corporation  duly  organized  under  and  acting  under  the  laws 
of  the  state  of  California,  and  lawfully  entitled  to  own,  maintain 
and  operate  its  line  of  street  railway  along  and  upon  the  several 
streets,  highways  and  roads  in  said  complaint  alleged,  and  in  so  doing 
to  demand  and  receive  fares  and  tolls  in  money  from  all  persons 
and  people  who  may  pass  over  the  same,  over  the  cars  of  said 
Potrero  &  Bay  View  Railroad  Company."  The  answer  goes  further 
than  is  necessary  to  meet  the  first  count  of  the  complaint.  The 
individual  defendants  are  the  only  ones  against  whom  it  can  be 
claimed  any  cause  of  action  is  stated.  They  meet  the  whole  of 
this  cause  of  action  by  denying  that  they  are  or  have  been  domg 
rhe  acts  complained  of.  They  go  a  step  further,  and  allege  that  some 
one  else,  viz.,  the  Potrero  &  Bay  View  Railroad  Company,  is  doing 
the  acts  set  forth  in  the  complaint,  and  that  it  has  the  right  so  to  do. 
This  latter  allegation  may  be  treated  as  mere  surplusage ;  and  the 
answer  still  contains  a  complete  defense  to  the  action.  If  we  are 
right  in  the  conclusion  reached,  that  a  general  averment  that  no 
such  corporation  exists  is  sufficient,  it  must  follow  necessarily  that 
a  denial  in  the  same  general  form  is  likewise  sufficient. 

It  is  clear  that  in  the  opinion  of  the  department  the  first  count 
of  the  complaint  was  understood  to  be  against  the  railroad  company, 
as  an  existing  corporation,  on  the  ground  that  it  was  exercising  the 
privileges  set  forth  without  right.  It  is  said :  "The  first  count  of  the 
complaint  alleged  that  the  Potrero  &  Bay  View  Railroad  Company 
never  had  the  right  and  franchise  to  build  and  maintain  tracks 
and  run  cars  upon  the  streets  within  the  city  and  county  of  San 
Francisco  and  the  answer  fails  to  aver  facts  showing  that  the 
company  had  such  rights  and  franchises."  We  cannot  so  construe 
this  count  of  the  complaint.  As  we  have  said,  it  does  not  claim  to 
recover  on  the  ground  that  the  corporation  is  usurping  franchises 
or  privileges  not  l>elonging  to  it,  but,  on  the  contrary,  avers  in  direct 
terms,  that  there  is  no  such  corporation,  and  that  the  individuals 
named  are  claiming  to  be  such  corporation.  This  being  true,  we 
are  of  the  opinion  that  the  cases  cited  by  counsel  for  the  respondent 
to  support  their  contention  that  a  denial  is  not  enough,  the  facts 
must  1)6  alleged  showing  a  right  to  exercise  the  privileges  claimed 
to  be  usurped,  are  not  controlling.  The  case  of  the  People  v.  Pfister, 
57  Cal.  532,  was  one  in  which  it  was  alleged  that  the  corporation 
"never  at  any  time  legally  existed  as  a  corporation,  and  that,  if  it 
ever  flid  so  exist  as  a  corporation,  and  was  a  corporation  at  any 
time,  its  full  term  of  existence  had  expired,  and  it  ceased  to  be 
a  subsisting  corporation  on  the  eleventh  day  of  November,  i8(S7." 
The  answer  in  the  case  was  a  "denial  of  all  the  material  allegations 
of  the  complaint."  No  question  seems  to  have  been  raised  as 
tr  the  form  of  cifhr-r  the  complaint  or  the  answer.    Certainly  no  such 


§    4  THE  PARTIES.  427 

question  is  decided  by  the  court.  In  the  case  of  The  People  v. 
Lowden,  8  Pac.  66,  the  complaint  alleged  specifically  the  facts 
showing  the  illegality  of  the  corporation.  It  was  held  that  the 
facts  stated  must  be,  specifically  denied,  and  the  denial  of  the 
legal  conclusions  drawn  from  the  facts  was  insufficient.  People  v. 
Clayton,  ii  Pac.  206,  was  an  information  to  test  the  right  of 
the  defendant  to  hold  a  territorial  office  in  Utah.  It  was  held 
sufficient  to  allege  generally  in  the  complaint  that  the  defendant 
"holds  and  exercises  the  functions  of  the  office  without  authority 
of  law  therefor,"  and  that  such  averment  cast  upon  defendant  the 
burden  of  affirming  and  pleading  and  proving  his  title  to  the  office. 
We  do  not  question  the  correctness  of  these  cases,  but  do  not 
regard  them  as  in  any  way  antagonistic  of  the  views  which  we 
have  expressed.  In  the  case  of  The  People  v.  Riverside,  66  Cal. 
288,  5  Pac.  350,  it  was  alleged  that  the  defendant  was  usurping 
the  franchise  to  be  a  corporation.  It  was  urged  on  the  part  of  the 
defendant  that  the  allegation  that  it  was  never  incorporated  was 
equivalent  to  an  allegation  that  it  never  existed,  and  therefore  no 
action  could  be  maintained  against  it.  The  court  says :  "the  ar- 
gument is  not  devoid  of  logical  force  and  unless  the  action  given 
by  the  code  differs  in  this  respect  from  that  which  existed  at  com- 
mon law  the 'weight  of  authority  is  doubtless  on  that  side;  for 
it  has  been  held  in  England  and  in  this  country  that  an  information 
for  usurping  the  franchise  to  be  a  corporation  should  be  against 
the  particular  person  guilty  of  the  usurpation,  (Leroy  v.  Cusacke, 
2  Rolle  113;  People  v.  Richardson,  4  Cowen  109)  ;  and  it  was  held 
that  quo  warranto  would  not  lie  against  one  claiming  office  under 
a  corporation  which  had  no  existence.  But  in  Minnesota  and  New 
York,  under  statutes  not  materially  different  from  our  code  in 
this  respect,  it  has  been  held  that  the  statutory  action  would  lie 
against  one  usurping  a  town  or  county  office,  although  no  such  town 
or  county  as  the  one  in  which  it  was  claimed  the  office  was  usurped 
existed.  People  v.  Carpenter.  24  N.  Y.  86;  People  v.  Parker,  25 
Minn.  215.  An  allegation  that  a  person  had  usurped  the  office  of 
supervisor  of  the  county  of  A.  would  be  inconsistent  with  one 
that  there  was  no  county  of  A ;  and,  since  a  city  cannot  exist  in  this 
state  without  incorporation,  it  is  equally  as  inconsistent  to  sue  one 
as  a  corporation,  and  at  the  same  time  deny  its  existence  as  a  cor- 
])oration.  But  for  this  there  is  a  precedent,  (People  v.  Nevada, 
6  Cal.  143)  ;  and  as  no  substantial  right  of  any  person  can  be  preju- 
diced by  following  it,  we  think  no  good  would  result  from  not  doing 
so;  particularly  as  the  object  of  the  code  would  be  effected,  and 
justice  promoted  thereby."  The  opinion  shows  great  doubt  in  the 
mind  of  the  court  as  to  the  correctness  of  the  rule  laid  down.  No 
reason  is  given  for  the  statcinent  that  the  code  changes  the  common 
law  in  respect  to  the  proper  mode  of  pleading,  and  we  see  none. 
That  case  dififers  from  this,  however.     It  was  an  action  to  deter- 


428  ATTORNEY    GENERAL   V.    LELAND   T.    STANFORD    ET    AL.  §    4 

mine  the  ^'a]idity  of  certain  proceedings,  to  incorporate  the  city 
of  Riverside,  and  the  particulars  in  which  those  proceedings  were 
invahd,  were  specifically  set  forth.  It  would  seem  to  be  proper 
in  such  case  that  the  defendant,  claiming  to  be  a  city  under  such 
proceedings,  and  acting  thereunder  as  such,  should  be  made  a  party 
to  an  action  in  determining  the  validity  thereof.  Boone,  Cor.  §  162. 
In  such  a  proceeding  the  trustees  of  the  city  could  not  be  sued,  as 
there  could  be  no  trustees  if  there  was  no  city,  and  no  individuals 
could  be  made  parties  as  claiming  to  be  a  corporation.  In  case  of  a 
private  corporation  the  rule  must  be  entirely  different.  If  no 
corporation  exists,  the  parties  who  are  claiming  to  be  such  may 
be  proceeded  against.  That  such  is  the  only  proper  course  where, 
as  in  this  case,  it  is  claimed  that  certain  persons  are  unlawfully 
claiming  to  be,  and  are,  exercising  the  functions  of  a  private  cor- 
poration which  never  had  any  existence,  the  authorities  are,  so  far 
as  we  know,  agreed,  and  such  we  believe  to  be  the  proper  rule. 
In  People  v.  Flint,  64  Cal.  49,  this  court  held  that  in  a  proceeding 
of  this  kind,  the  corporation  was  the  proper  defendant.  But  there 
the  facts  were  set  forth  showing  that  the  defendant  was  a  de  facto 
corporation,  acting  under  articles  of  incorporation,  which  were 
claimed  and  held  by  the  court  to  be  defective.  The  court  after  hold- 
ing that  the  corporation  was  a  necessary  party,  says:-  'Tt  is  well  to 
say,  to  prevent  any  misconception,  that  if,  on  a  new  trial,  after  the  al- 
leged corporation  had  been  made  a  party,  it  should  be  adjudged  that 
it  had  never  been  legally  a  corporation,  that  in  that  case  appropriate 
proceedings  should  be  had'  by  which  the  affairs  of  such  de  facto 
corporation  should  be  wound  up  and  settled  by  the  trustees." 

The  statute  of  limitations  is  pleaded  by  way  of  answer,  and  a 
demurrer  thereto  was  sustained  by  the  court  below.  This  it  is 
claimed,  was  error,  but  as  the  case  must  be  reversed  on  other 
grounds,  and  the  pleadings  amended,  we  express  no  opinion  on 
the  question. 

As  to  the  other  questions  arising  upon  the  answer,  they  relate 
to  the  special  answer  to  the  second  count  of  the  complaint,  which 
count  of  the  complaint  was  held  in  the  former  opinion  to  be  bad. 
We  adhere  to  that  ojiinion  so  far  as  it  relates  to  these  questions, 
except  so  far  as  it  holds  that  a  duly  organized  corporation  cannot 
tiike  an  assignment,  from  its  I'lwful  owners,  of  a  franchise  to  lay 
down  and  maintain  a  street  railroad.  This  is  based  upon  the  consti- 
tutional provision  that  "corporations  may  be  formed,  under  general 
laws,  but  shall  not  be  created  by  special  act."  Art.  4,  §  31.  This  pro- 
vision ap])lies  to  the  formation  or  creation  of  corporations,  and 
to  the  powers  directly  conferred  upon  them  by  legislative  enact- 
ment, ami  cannot,  in  nur  judgment,  be  construed  as  prohibiting 
the  assignment  of  a  franchise  to  a  legally  organized  corporation. 
by  persons  having  the  lawful  right  to  exercise  and  transfer  the 
frame. 


§    4  THE  PARTIES.  429 

If  we  look  to  the  judgment  rendered  in  this  case,  it  is  apparent 
that  it  is  founded  upon  the  second  count  of  the  complaint,  which 
was  held  by  the  department  to  be  bad.  It  does  not  decree  that 
there  is  or  was  no  such  corporation  as  the  Potrero  &  Bay  \^iew  Rail- 
road, nor  that  the  said  corporation  or  the  other  defendants,  are 
usurping  the  right  to  be  such  a  corporation,  but  simply  decrees  that 
the  plaintiff  "recover  of  the  defendants  the  said  rights,  powers 
and  franchises  by  them,  the  said  defendants,  exercised  and  claimed, 
viz.,  of  constructing,  maintaining  and  operating  an  iron  railroad, 
commonly  called  and  known  as  a  ''street  railroad,"  along  and  upon 
certain  of  the  streets,  roads  and  highways,  towit"  describing  the 
route;  and  the  defendants  are  enjoined  from  exercising  said  fran- 
chises. We  are  of  the  opinion  that,  upon  the  decision  of  the  de- 
partment that  the  second  count  of  the  complaint  was  bad,  the 
judgment  of  the  court  below  should  have  been  reversed,  for  the 
reason  that  the  judgment  of  the  court  below  cannot  be  supported 
by  the  first  count.  The  sole  ground  upon  which  the  tirst  coinit 
is  based,  viz.,  the  non-existence  of  the  corporation,  is  left  wholly 
tmdetermined  by  the  judgment.  The  judgment  appealed  from 
is  reversed,  and  the  cause  remanded. 

See  also  Commonwealth  Bank  v.  State,  6  Sm.  &  M.  (Miss.)  599;  People 
V.  Rensselaer,  etc.,  R.  Co.,  15  Wend.  (N.  Y.)  114;  State  v.  Atchison,  etc., 
R.  Co.,  24  Neb.  143;  Carmel,  etc.,  Co.  v.  Small,  150  Ind.  427;  People  v. 
Ravenswood,   etc.,  Co.,  20   Barb.    (N.   Y.)    518. 


5.     Respondent  as  usurper  of  corporate  ofifice. 
PEOPLE  EX  REL.  HUDSON  et  al.  v.  P.  E.  DeMILL  et  al. 
1867.     Supreme  Court  of  Michigan.     15  Mich.   164. 

(Information  in  quo  ivarranto  to  determine  the  legality  of  the 
election  of  wardens  and  vestrymen  of  St.  Paul's  Church,  in  De- 
troit.) 

Cooley,  J.  It  is  commonly  a  source  of  regret  when  a  court  is 
compelled  to  dispose  of  a  case  before  it  without  passing  upon  the 
main  questions  raised ;  but  the  nature  of  the  record  in  the  present 
case  is  such  as  to  leave  us  no  alternative.  We  are  clearly  of  the 
opinion  that  the  information  is  fatally  defective  in  two  particulars. 

It  is  defective,  firstly,  in  not  showing  in  what  manner  the  organi- 
zation in  which  the  defendants  are  accused  of  having  usurped  office 
became  a  body  corporate.  When  any  person,  or  association  of  per- 
sons, is  charged  with  usurping  the  franchise  of  a  corporation,  it  is 
sufficient  for  the  attorney  general  to  call  upon  them,  in  general  terms, 
to  show  by  what  authority  they  claim  the  right  to  exercise  such  fran- 
chise ;  but  when  the  very  nature  of  the  proceeding  is  such  as  to  as- 


430  PEOPLE  EX  REL.  HUDSON  ET  AL.  V.   P.  E.  DE  MILL  ET  AL.  §    4 

sume  the  actual  existence  of  a  corporation,  and  it  is  alleged  that  the 
defendants  usurp  some  authority  therein,  no  ground  whatever  is 
shown  for  caUing  upon  the  defendants  to  show  their  right  until  it  is 
made  to  appear  that  a  corporation  exists.  The  claim  to  a  corporate 
franchise,  which  does  not  exist  in  fact,  may  be  a  great  public  wrong, 
demanding  immediate  redress ;  but  the  claim  to  an  office  in  a  corpo- 
ration w^hich  has  no  existence  can  hardly  be  a  matter  of  public  con- 
cern, unless  accompanied  with  the  attempt  to  exercise  a  corporate 
franchise ;  in  which  case  the  remedy  would  be  an  information,  not 
for  the  unlawful  intrusion  into  an  office,  but  for  the  usurpation  of 
the  franchise.  The  information  in  a  case  like  the  present  must, 
therefore,  show  that  a  corporation  exists ;  for  until  that  is  shown,  it 
is  not  made  to  appear  that  there  is  any  office  into  which  the  defend- 
ants can  intrude.  The  precedents  in  proceedings  against  public  offi- 
cers, are  not  applicable  in  all  particulars  to  the  case  before  us ;  since 
those  are  cases  where  the  courts  must  judicially  take  notice  of  the 
existence  of  the  offices,  and  no  allegations  are  necessary  to  show  how 
they  were  created. 

The  statute  under  which  this  information  was  filed  (Comp.  L. 
§  5291)  authorizes  this  proceeding  in  the  case  of  the  usurpation  of 
office  ''in  any  corporation  created  by  the  authority  of  this  state." 
The  information  avers,  in  the  words  of  the  statute,  that  the  corpora- 
tion known  as  "the  rector,  wardens  and  vestrymen  of  St.  Paul's 
Church,  in  the  city  of  Detroit,"  of  which  the  defendants  claim  to 
be  wardens  and  vestrymen,  is  a  "corporation  created  by  the  au- 
thority of  this  state" ;  and  we  might  infer  it  to  be  the  view  of  the 
pleader  that  the  statute  establishes  a  rule  of  pleading;  whereas,  in 
our  opinion  it  only  points  out  the  cases  in  which  an  information  may 
be  filed,  leaving  the  mode  of  showing  that  the  case  is  one  within  the 
statute,  to  be  governed  by  the  rules  of  pleading  before  in  force. 

Where  a  corporation  has  been  created  by  special  charter,  we  do 
not  regard  it  necessary,  though  perhaps  usual,  to  do  more  in  the  in- 
formation than  to  aver  its  existence  in  general  terms;  since  the 
court  is  bound  to  take  judicial  notice  of  the  charter,  (Comp.  L. 
§  2,  clause  18),  and  is  thus  informed  of  the  actual  corporate  exist- 
ence. But  as  the  body  in  question  has  no  such  charter,  and  if  it 
exists  as  a  corporation  at  all,  must  have  been  constituted  such  under 
some  general  law  of  the  territory  or  state,  by  acts  in  pais,  it  is  obvi- 
nus  that  there  is  nothing  upon  the  face  of  this  information  by  which 
the  court  can  see  that  the  allegation  that  the  church  is  a  corporation 
is  true  in  fact.  The  bare  allegation  that  it  is  one  is  but  a  conclusion 
of  law  drawn  by  the  pleader,  but  which  the  court  ought  to  have  the 
means  of  drawing  for  itself  from  the  facts  set  forth. 

We  were  referred  upon  the  argument  to  several  cases  in  which  it 
has  been  held  that  when  the  state  calls  upon  one  to  show  cause  why 
he  claims  to  exercise  a  corporate  franchise,  or  to  possess  a  public 
office,  the  allegations  of  the  attorney  general  may  be  of  the  most 


§    4  THE  PARTIES.  431 

general  character,  while  the  defendant  is  required  to  set  forth  spe- 
cifically, and  with  particularity  the  grounds  of  his  claim  and  the  con- 
tinued existence  of  his  right.  People  v.  Mayworm,  5  Mich.  148; 
People  V.  River  Raisin  &  Lake  Erie  R.  R.  Co.,  12  Mich.  398.  We 
have  no  disposition  to  qualify  these  decisions  in  any  way.  The  state 
has  always  the  right  to  demand  of  any  one  assuming  a  public  office 
or  franchise  to  show  his  authority  therefor ;  but  the  state  has  no  con- 
cern with  the  unfounded  claims  which  parties  may  make  to  an  office 
not  existing  in  fact.  The  existence  of  the  corporation  in  the  present 
case  is  a  jurisdictional  fact  which  must  be  set  forth ;  while  there  is 
no  corresponding  jurisdictional  fact  to  be  alleged  in  the  cases  cited. 
The  right  to  file  information  in  those  cases  depended  solely  upon 
the  discretion  of  the  attorney  general ;  while  in  this  case,  there  must 
be  corporate  existence,  or  he  is  not  authorized  to  call  upon  defend- 
ants to  show  ground  for  their  claims.  Jurisdiction  appearing,  the 
facts  relating  to  the  intrusion  or  usurpation  may  be  alleged  here,  as 
they  were  in  those  cases,  in  very  general  terms,  and  similar  allega- 
tions to  those  referred  to  in  the  cases  cited  have  not  been  objected 
to  in  the  present  case. 

There  is  also  a  broad  distinction  in  respect  to  this  particular  point 
between  the  cases  now  before  us,  and  those  cited  by  counsel  from  the 
Federal  decisions,  where  the  question  related  to  the  averment  of 
citizenship,  where  one  of  the  parties  was  a  corporation.  That  ques- 
tion affected  either  personal  rights  to  sue,  or  personal  exemptions 
from  being  sued  in  the  particular  court ;  and  the  fact  was  one  of 
which  the  court  would  take  no  notice  in  any  stage  of  the  case  unless 
it  was  specially  put  in  issue.  But  here  the  fact  of  corporate  existence 
is  not  the  basis  of  any  authority  at  all  in  the  court  to  act  in  respect 
to  the  subject  of  controversy,  and  it  is  not  one  in  respect  to  which 
there  can  be  a  waiver  by  the  parties.  This  proceeding  by  informa- 
tion is  of  a  prerogative  character,  to  enable  the  court  to  see  that 
privileges  or  franchises  granted  by  or  pertaining  to  the  sovereignty 
of  the  state  are  not  usurped,  intruded  upon  or  abused ;  and  it  per- 
tains to  the  dignity  of  the  court  to  see  that  parties  do  not  use  it,  even 
by  consent,  for  private  purposes.  If  the  general  allegations  em- 
ployed in  this  case  were  sufficient,  and  the  proof  could  be  waived  by 
the  parties,  it  would  be  easy  to  impose  upon  the  court  the  disputes 
as  to  offices  in  voluntary  associations,  in  no  way  affecting  preroga- 
tives of  sovereignty,  and  to  which  this  proceeding  has  no  application 
whatever. 

But  if  this  were  not  a  jurisdictional  defect,  there  would  still  be 
reasons  why  the  mode  in  which  the  corporation  became  such  should 
be  pointed  out.  Although  the  statute  says  the  information  may  be 
filed  against  "any  person"  usurping  office  in  "any  corporation" 
created  by  authority  of  this  state,  yet  there  must  be  very  many  cases 
in  which  the  court  would  be  at  liberty  to  refuse  to  listen  to  the  con- 
troversy.   When  the  proprietors  of  a  coimtry  store,  or  the  members 


432  PEOI'LE  EX  KEL.   HUDSON  ET  AL,  V.   P.  E.  DE  MILL  ET  AL.  §    4 

of  a  village  library  association,  or  the  participants  in  a  village  dis- 
trict debating  society,  or  an  association  of  musical  amateurs,  may 
incorporate  themselves  under  our  general  laws,  and  establish  various 
grades  of  officers  for  the  purpose  of  their  organization,  it  can 
scarcely  be  urged  that  the  Supreme  Court  can  be  required  to  settle  all 
their  contested  elections  and  appointments  in  this  proceeding.  There 
are  grades  of  positions  denominated  offices  which  do  not  rise  to  the 
dignity  of  being  entitled  to  the  notice  of  the  attorney  general  by  in- 
formation, if,  in  fact,  there  be  not  corporations  which  are  not  within 
the  intention  of  the  statute — upon  which  we  express  no  opinion.  An 
information,  filed  in  a  case  not  proper  for  the  consideration  of  the 
court,  it  should  have  the  opportunity  to  dismiss  in  some  prelimmary 
stage  of  the  case ;  and  for  that  reason,  if  for  no  other,  it  ought  to 
have  the  facts  set  forth  which  would  direct  it  to  the  law  authorizing 
the  corporation,  prescribing  its  functions,  and  indicating  the  powers 
?nd  duties  of  its  officers.  We  ought  to  be  able  to  see  whether  the 
office  is  one  provided  for  by  the  statute,  or  whether,  instead,  it  is 
created  by  some  derivative  authority ;  so  that  we  may  draw  the  line 
of  distinction  between  those  which  are  "offices"  within  the  meaning 
of  the  statute,  and  those  which  are  rather  the  positions  of  agents  or 
servants  merely. 

'  But  the  information  is  bad,  secondly,  because  of  misjoinder  of 
parties,  and  of  causes  of  complaint.  It  may  be  proper  that  the  two 
parties  claiming  to  be  wardens  should  unite  in  a  proceeding  to  test 
the  right  of  those  in  possession,  and  that  the  eight  vestrymen  should 
do  the  same.  This  might  depend  upon  the  mode  of  election.  But 
no  mode  of  election,  or  appointment,  could  authorize  persons  claim- 
ing different  offices,  to  unite  their  complaints  and  seek  to  determine 
the  title  to  both  offices  in  one  proceeding,  without  a  statute  especially 
permitting  it.  There  is  no  such  statute  in  this  state,  and  the  difficul- 
ties in  the  way  of  making  it  of  service  are  so  great,  that  it  could 
hardly  be  desirable  that  one  should  be  passed.  Tt  is  just  as  competent 
to  test  in  one  suit  the  right  to  the  offices  of  shcrifif  and  treasurer  of 
a  county,  as  to  those  of  wardens  and  vestrymen  in  a  church.  They 
may  derive  their  'title  from  the  same  election,  and  the  questions  in 
dispute  may  be  the  same ;  but  this  is  no  more  than  will  often  happen 
when  several  offices  of  the  same  municipality  are  in  contest  at  the 
same  time.  The  misjoinder  is  as  fatal  as  it  would  be  for  two  persons, 
having  distinct  and  sc]-)arate  claims  for  trespasses  committed  by  two 
others,  to  join  in  a  suit  to  recover  damages  therefor.  The  similarity 
of  duties  in  the  two  offices,  or  the  fact  that  the  incumbents  partici- 
l)atc  in  the  same  duties,  if  such  be  the  fact,  cannot  change  this 
fundamental  rule  in  pleading. 

Wc  arc  r,f  the  opinion  that  the  dcnnu'rer  is  well  taken.  As,  on  the 
ground  of  iIk'  misjoinder,  if  for  no  other  reason,  an  amendment 
could  not  l)t  allowed,  the  judgment  must  be  final. 

CiiiusTiANCV.  J.,  and  MAinrN,  Ch.  J.,  concurred. 

Camphi:;.!.,  T..  being  a  ])arty,  did  not  sit. 


i;    5  PLEADINC;,    I'RACTICE   AND   PROCEDURE.  ,433 

Section  5. — Pleading,  Practice  and  Procedure. 

I.     The  pleadings  in  general. 

Since  the  manifest  tendency  of  modern  courts  is  to  treat  pro- 
ceedings by  information  in  the  nature  of  quo  ivarranto,  as  an  ordi- 
nary civil  proceeding,  so  far  as  that  may  be  possible,  it  is  conse- 
quently held  that  the  general  and  well  known  principles  and  rules 
which  govern  good  pleading  in  civil  actions  should  also  govern  here, 
in  so  far,  at  least,  as  the  same  may  be  applicable.  Although  nearly 
all  the  states  have  passed  statutes  of  quo  zvarranto,  yet  few,  if  any  of 
them,  have  definitely  laid  down  rules  respecting  the  pleadings  or  pro- 
cedure in  such  cases  and  hence  the  courts  are  left  to  the  usual  prin- 
ciples and  rules  of  the  common  law.  But  little,  if  any,  change  has 
been  made  in  this  respect,  in  those  states  possessing  a  code  and  prac- 
tice act.  In  a  few  states,  notably  in  Illinois,  the  courts,  having  re- 
gard for  the  criminal  form  of  the  information,  have  held  that  the 
rules  of  pleading  applicable  to  criminal  informations  and  indictments 
should  govern ;  the  information  must  therefore  be  made  in  the  name 
of  the  "people"  and  conclude  "against  the  peace  and  dignity,"  etc. 
In  such  states  all  the  exactness  characteristic  of  criminal  pleadings 
is,  theoretically,  at  least,  required,  in  pleadings  in  quo  ivarranto. 
With  these  few  exceptions,  however,  it  will  be  found  that  the  usual 
rules  applicable  to  good  pleading  in  ordinary  civil  actions  will  gov- 
ern the  pleadings  of  both  parties  in  quo  warranto. 


STATE  EX  REL.  ATTORNEY  GENERAL  v.  MESSMORE. 
1861.     Supreme  Court  of  Wisconsin.     14  Wis.  125. 

By  the  court,  Dixon,  C.  J.  Motion  by  the  defendant  to  quash 
the  writ  and  dismiss  the  information  in  a  proceeding  in  the  nature  of 
a  quo  warranto,  instituted  by  the  attorney  general  for  the  purpose  of 
removing  the  respondent  from  the  office  of  judge  of  the  circuit 
court  for  the  sixth  judicial  circuit  in  this  state,  which,  it  is  alleged 
he  has  usurped  and  unlawfully  holds. 

The  information  or  complaint  is  in  the  form  heretofore  usuallv 
adopted  w^hen  the  proceeding  was  by  information,  properly  so  called, 
and  avers  generally  that  the  defendant  "for  the  space  of  one  dav 
and  upwards,  from  the  nth  day  of  April,  1861,  has  usurped,  in- 
truded into  and  unlawfully  held,  used  and  exercised,  and  still  doth 
usurp,  intrude  into,  unlawfully  hold,  use  and  exercise  the  office  of 
judge  of  the  sixth  judicial  circuit  in  the  said  state,  without  any  legal 


434  STATE  EX  REL.  ATTORNEY  GENERAL  V.    MESSMORE.  §    5 

election,  appointment,  warrant  or  authority  whatsoever  therefor,  in 
contempt  of  the  people  of  the  state  of  Wisconsin,  to  their  great  dam- 
age and  prejudice."  It  concludes  with  a  prayer  for  due  advice  in  the 
premises  and  for  due  process  of  law  against  the  defendant,  that  he 
may  be  made  to  answer  by  what  warrant  he  claims  to  hold,  use,  exer- 
cise, and  enjov  the  office,  and  if  no  sufficient  warrant  be  shown,  that 
judgment  of  ouster  be  entered  against  him.  The  summons  is  di- 
rected to  the  sheriff  of  the  county  of  Dane,  and  commands  him  to 
summon  the  defendant,  if  to  be  found  in  his  county,  to  be  and  appear 
before  the  justices  of  this  court,  at  the  capitol,  in  the  city  of  Madi- 
son, within  twenty  days  after  service  thereof,  exclusive  of  the  day  of 
service,  then  and  there  to  answer  to  a  certain  information,  in  the  na- 
ture of  quo  zuarranto,  filed  by  the  attorney  general  in  this  court  on 
the  day  the  summons  was  issued,  whereby  the  defendant  is  required 
to  show  by  what  warrant  and  authority  he  has  usurped,  etc.,  the  said 
office.  It  also  directs  the  sheriff  to  summon  and  require  the  defend- 
ant to  serve  a  copy  of  his  answer  to  the  information  (a  copy  of  which 
will  therewith  be  serv^ed  on  him)  upon  the  attorney  general,  at  his 
office  in  the  capitol,  in  the  city  of  Madison,  within  twenty  days  after 
service  of  the  stnnmons  and  a  copy  of  the  information,  exclusive  of 
the  day  of  service ;  and  in  default  thereof  he  is  notified  that  the  at- 
torney general  will  apply  to  this  court  for  the  relief  and  judgment 
demanded  and  prayed  for  in  the  information.  It  is  tested  in  the  name 
of  the  chief  justice,  and  signed  and  sealed  by  the  clerk  of  the  court, 
but  not  subscribed  by  the  attorney  general. 

The  objections  taken  by  the  motion  are:  i.  The  proceedings  are 
not  in  the  form  of  a  civil  action.  2.  The  writ  is  not  sufficient  as  a 
summons,  and  the  information  not  sufficient  as  a  complaint  in  any 
action  known  to  the  laws  of  the  state ;  and,  3.  The  writ  is  not  a  suffi- 
cient writ  of  quo  warranto,  nor  a  sufficient  writ  in  a  proceeding  in 
the  nature  of  quo  zvarranto  in  that  it  fails  to  require  the  defendant 
to  show  by  what  warrant  he  holds,  or  claims  to  hold,  the  office  which 
he  is  alleged  to  have  usurped,  and  fails  to  name  any  day  upon  which 
he  is  to  appear,  but  designates  twenty  days  for  that  i)urpose,  during 
all  which  time  the  court  was  ..ot  to  be  and  was  not  in  session. 

The  motion  is  framed  to  meet  either  of  two  views  which  it  was 
thought  might  possibly  be  taken  by  the  court.  The  last  point  is  only 
relied  upon  in  case  we  should  be  of  opinion  that  the  common  law 
writ  of  quo  zvarranto  and  the  substituted  statutory  i^rocccding  by  in- 
formation in  nature  of  quo  zvarranto  arc  not  a1)olishcd,  and  that  the 
attorney  general  in  the  ])rcsent  case  is  attempting  to  pursue  one  or 
the  other  of  those  remedies.  If  they  still  exist  and  this  proceeding 
was  instituted  in  pursuit  of  cither  of  them,  there  would  seem  to  be 
little  room  for  doubting  its  irregularity.  But  as  the  other  points  are 
predicated  upon  the  abolition  of  the  writ  and  the  proceeding  by  in- 
formation, and  as  we  ihiiik  they  are  abolished,  comment  upon  this 
one  becomes  unnecessary. 


§    5  PI-EADING,   PRACTICE  AND   PROCEDURE.  435 

Sec.  I,  ch.  i6o,  R.  S.,  provides:  "The  writ  of  scire  fades,  the  writ 
of  quo  warranto^  and  proceedings  by  information  in  the  nature  of 
qito  zvarranto,  shall  be  as  here  prescribed ;  and  the  remedies  hereto- 
fore obtainable  in  those  forms,  may  be  obtained  by  civil  action,  under 
the  provisions  of  this  chapter.  But  any  proceedings  heretofore  com- 
menced, or  judgment  rendered,  or  right  acquired,  shall  not  be  af- 
fected by  this  act.  It  shall  not  be  necessary  to  sue  out  such  writs 
in  form." 

This  was  originally  section  331  of  the  Code  of  Procedure  as  en- 
acted in  1856;  and  the  chapter  of  which  it  is  a  part  constituted  sec- 
tions 331  to  350  inclusive.  Laws  of  1856,  p.  207.  It  was  chapter  i, 
of  title  13,  as  the  code  was  afterwards  classified  and  divided.  At 
that  time,  therefore,  there  can  be  no  doubt  that  the  legislature  in- 
tended the  remedy  in  such  cases  should  be  by  civil  action  in  the 
forms  prescribed  by  the  code.  The  code  was  passed  and  published 
as  one  chapter,  and  no  other  construction  could  have  been  given.  It 
is  a  "civil  action",  as  it  was  then  and  still  is  defined  by  the  statute. 
Sees.  1-6,  Code;  Sees.  1-6,  ch.  122,  R,  S. 

In  the  revision  of  1858,  the  code  was  dismembered,  and  its  various 
parts  distributed  through  the  statutes  under  the  different  titles  and 
chapters.  In  doing  this,  sufficient  regard  seems  not  to  have  been 
had  to  the  applicability  of  the  language  of  particular  sections.  They 
were  left  to  read  as  in  their  original  connection,  and  thus  much  ap- 
parent confusion  and  uncertainty  were  introduced.  The  section  be- 
fore us  is  one  among  the  many  instances  of  the  kind.  It  is  de- 
clared that  the  remedies  heretofore  obtainable  by  the  writ  of  quo 
zvarranto,  and  proceedings  by  information  in  the  nature  of  quo  war^ 
ranto,  "may  be  obtained  by  civil  action  under  the  provisions  of  this 
chapter."  This  chapter  160  contains  no  provisions  whatever  on  the 
subject  of  civil  actions.  There  is  in  strictness,  nothing  to  which  the 
language  can  be  applied,  and  we  are  without  a  statutory  guide  for 
the  proceeding.  In  its  former  connection  it  signified  the  civil  action 
prescribed  by  the  code,  which  was  all  but  one  chapter.  To  have  been 
consistent  and  according  to  the  obvious  intention  of  the  legislature 
and  the  revisers,  it  should  have  read  "under  the  provisions  of  chap- 
ters 124  and  125  of  these  statutes."  A  similar  question  was  raised 
and  presented  in  the  case  of  BuckstafiF  v.  Hanville,  decided  on  the 
first  day  of  the  present  term  {ante  p.  83)  ;  and  we  held  that  such 
transposition  furnished  no  sufficient  evidence  that  the  legislature  in- 
tended any  change,  and  that  these  "disjecta  membra"  of  the  code 
were  to  be  construed  as  when  they  constituted  one  body  of  the  law. 
This  case  must  be  governed  by  the  same  rule,  and  is  therefore  a  civil 
action,  to  be  commenced  and  prosecuted  in  all  respects  like  other 
civil  actions. 

The  same  doctrine  was,  by  implication,  at  least,  held  in  the  case 
of  the  State  ex  rcl.  Attorney  General  v.  Foote,  decided  in  the  Janu- 


436  STATE  EX   KEL.   ATTORNEY  GENERAL  V.    MESSMORE.  §    5 

ary  Term,  i860.  (11  Wis.  14.)  The  complaint  in  that  case,  as  in 
this,  was  styled  an  "information" ;  and  the  summons  here  is  copied 
from  the  one  there  used.  No  objection  was  taken  to  the  form  of  the 
summons  but  the  complaint  was  demurred  to,  principally  on  the 
ground  that  this  court  had  no  jurisdiction  over  the  subject  of  the 
action.  It  was  insisted,  that  section  three  of  article  7,  of  the  consti- 
tution only  gave  this  court  power  to  issue  this  writ  of  quo  ivarranto 
at  the  common  law ;  and  that  the  statutes  of  1849  abolished  the  com- 
mon law  writ  and  substituted  the  proceeding  by  information ;  that 
the  present  statute  abrogated  both  the  writ  and  the  information,  and 
declared  a  civil  action  to  be  the  only  remedy ;  and  as  it  was  a  mere 
civil  action  it  could  not  be  entertained.  We  considered  that  the 
framers  of  the  constitution  looked  rather  to  the  substance  than  to 
the  form;  that  their  object  was  not  so  much  to  give  us  power  to 
issue  a  writ  of  a  prescribed  form,  as  to  enable  us  to  hear  and  deter- 
mine controversies  of  a  certain  character ;  and  that  this  jurisdiction 
could  not  be  taken  away  by  any  legislative  changes  in  the  forms  of 
the  remedy,  but  that  we  might  adopt  any  new  process  which  was  cal- 
culated to  attain  the  same  end.  This  was  in  accordance  with  the  pre- 
vious decisions  and  practice  of  this  court.  It  had  always  taken  juris- 
diction of  the  proceeding  by  information  in  the  nature  of  quo  war- 
ranto. The  demurrer  was  therefore  overruled,  but  without  a  written 
opinion. 

The  language  of  chapter  160  in  every  way  corroborates  this  view* 
All  remedies  in  courts  of  justice  are  divided  into  actions  and  special 
proceedings.  Sec.  i,  ch.  122.  Prosecutions  of  this  nature  are  in- 
variably denominated  actions,  of  which  in  civil  proceedings  there 
is  but  one  form.  Section  6,  under  which  this  one  is  instituted,  pro- 
vides, "An  action  may  be  brought  by  the  attorney  general  in  the 
name  of  the  state,  upon  his  own  information,  or  upon  the  complaint 
of  a  private  party,  against  the  parties  offending  in  the  following 
cases:  i.  When  any  person  shall  usurp,  intrude  into,  or  unlawfully 
hold  or  exercise  any  public  office,  civil  or  military,"  etc. 

It  follows  that  the  summons  is  irregular.  The  requirement  that 
the  defendant  appear  before  the  court,  the  statement  of  the  object  of 
the  action,  the  teste  and  signature  of  the  clerk,  may  not  vitiate  it. 
but  it  should  have  been  directed  to  the  defendant  and  subscribed  by 
tile  attorney  general.  Sec.  2,  ch.  124,  R.  S.  It  is  however  too  late 
for  the  defendant  to  take  advantage  of  these  defects.  After  service 
he  aj)i)lied  to  the  attorney  general,  and,  by  stipulation,  obtained  fur- 
ther time  to  answer.  This  was  an  ap])carance  in  the  action,  and  a 
waiver  of  all  objections  In  the  form  of  the  summons. 

As  to  the  com[)laint  or  information  as  it  was  called,  it  is  un- 
doubtedly irregular  in  not  stating  the  facts  constituting  the  usurpa- 
tion or  cause  of  action.  It  is  little  more  than  a  statement  of  legal 
conclusions  according  to  an  ancient  form.  But  these  are  defects 
which  r;ititir)t  l)c  reached  by  motion  to  dismiss.  The  remedy  is  by 
<lciiuirrcr  or  objection  taken  at  the  trial.     Sees.  5,  9,  ch.  125,  R.  S. 


§    5  I'LEADING,    PRACTICE  AND   PROCEDURE.  437 

Motion  denied. 

Subsequently,  but  before  the  above  opinion  Avas  filed  and  the 
g^rounds  upon  which  the  motion  was  overruled  knowm  to  the  counsel, 
the  defendant  filed  an  answer,  and  the  state  filed  replications,  and 
the  attorney  general  moved  for  an  order  requiring  the  defendant  to 
rejoin  or  demur  to  the  replications,  and  for  a  jury  in  this  court  to  try 
the  issues  of  fact,  which  motion  was  disposed  of  in  the  following 
opinion  : 

By  the  court,  Dixon,  C.  J.  So  much  of  the  motion  as  asks  an 
order  requiring  the  defendants  to  rejoin  or  demur  to  the  replica- 
tions, is  denied.  We  have  already  decided  that  this  is  a  civil  action. 
It  must  therefore  be  governed  by  the  rules  applicable  to  other  civil 
actions.  As  the  nature  of  the  case  does  not  admit  of  a  counter 
claim  the  only  pleadings  are  the  complaint  and  the  answer.  Upon 
them  the  issue  is  considered  fully  made  up  so  far  as  the  pleadings 
are  concerned,  and  a  replication  is  not  allowed.  The  attorney  gen- 
eral has  leave  to  withdraw  his  replications,  and  the  cause  stands  for 
trial  on  the  complaint  and  answer. 

We  are  of  the  opinion  that  the  other  "branch  of  the  motion  should 
be  granted.  The  action  is  an  important  one.  Although  civil  in 
form,  it  is  in  every  other  respect  just  what  it  was  at  common  law — 
a  public  prosecution.  The  usurpation  of  an  office,  though  it  involves 
private  rights  and  interests,  has  always  been  regarded  as  a  public  of- 
fense. The  remedy  is  still  by  an  action  in  the  name  of  the  state. 
It  is  instituted  and  conducted  by  the  attorney  general  under  his  of- 
ficial oath  and  responsibility.  In  this  case  it  involves  the  functions 
of  a  high  judicial  office,  and  the  due  administration  of  justice  in  a 
large  section  of  the  state.  It  should  therefore  be  determined  as 
speedily  as  possible  consistently  with  a  due  regard  to  the  rights  of 
the  defendant.  He  n>akes  no  substantial  claim  for  delay.  The  ques- 
tions of  fact  are  few  and  simple,  and  will  be  quickly  disposed  of. 

For  these  reasons,  we  think  a  jury  should  be  called  in  this  court. 

See  in  general  on  the  subject  of  pleadings  in  quo  warranto,  the  learned 
note  by  Esek  Cowen,  Reporter,  in  4  Cow.    (N.  Y.)    100. 

See  also  Bishop  v.  State,  149  Ind.  223;  People  v.  Clark,  4  Cow.  (N.  Y.) 
95 ;  State  v.  Steers,  44  AIo.  222, ;  Territory  v.  Virginia  Road  Co.,  2  Mont. 
96;  People  V.  Northern  R.  Co.,  42  N.  Y.  217;  People  v.  Albany,  etc.,  R. 
Co.,  I  Lans.  (N.  Y.)  308:  State  v.  Commercial  Bank,  10  Oh.  535;  State 
V.  Hardie,  i  Ired.  L.  (N.  C^  42;  Commonwealth  v.  Commercial  Bank, 
28  Pa.  St.  391,  395;  State  v.  .\nderson,  26  Fla.  240;  Hinckley  v.  Breen,  55 
Conn.  119;  Attorney-General  v.  Micliigan,  etc.,  Bank.  2  Doug.  (Mich.) 
.^o9- 

Concerning  the  criminal  nature  of  the  pleadings  in  Illinois  see  Lavalle 
V.  People.  68  111.  252:  Distilling,  etc.,  Co.  v.  People,  156  111.  448;  People 
V.   Mississippi,   etc.,   R.   Co.,    13   111.   66;    Wight  v.    People,    15   111.  417. 

In  Ohio  and  New  Jersey  it  is  held  that  the  rules  of  pleading  established 
by  the  code  of  civil  procedure  do  not  apply  to  quo  ivarranto.  State  v. 
McDaniel,  22  Oh.  St.  354;   State  v.  Roe,  26  N.  J.  L.  215. 


438  CLARK  V.  PEOPLE  EX  REL.  CRANE.  §  5 

2.     The  information,  petition  or  complaint. 

Where  the  information  is  filed  ex  officio  by  the  attorney  general 
it  need  not  set  forth  the  name  of  the  person  claiming  the  office 
usurped  nor  allege  more  than  that  respondents  are  unlawfully  hold- 
ing and  exercising  said  office  or  franchise  and  that  they  have  no  law- 
ful right  or  title  to  exercise  the  same.  General  rules  apply  to  the 
form  of  the  allegations  in  the  information  as  well  as  to  their  suffi- 
ciency. Where  the  relator  claims  title,  and  induction  as  well  as 
ouster  is  sought,  the  title  of  such  relator  must  be  set  forth  with  all 
reasonable  certainty.  Where  the  information  is  to  procure  the  for- 
feiture of  a  charter  a  substantial  cause  for  forfeiture  must  be  clearly 
alleged ;  so  also  of  the  facts  constituting  a  breach  of  condition  when 
such  is  relied  upon.  Where  the  action  is  to  procure  the  forfeiture  of 
a  charter  once  legally  granted,  the  information  must  run  against  the 
corporation  eo  nomine,  but  where  it  alleges  the  usurpation  of  the 
right  to  be  a  corporation  it  must  run  against  the  individuals  claiming 
or  usurping  such  right.  Where  the  information  is  for  usurping 
secondary  franchises  it  is  necessary  to  set  forth  the  rights  and 
privileges  usurped  and  the  information  should  inform  the  court  of 
the  statute  under  which  said  corporation  was  organized  so  that  its 
rights  and  powers  may  be  made  known  to  the  court.  Amendments 
of  the  information  before  and  at  trial  are  usually  as  freely  allowed 
as  in  ordinary  civil  proceedings. 

See  State  v.  Parsons,  40  N.  J.  L.  i ;  State  v.  Bailey,  16  Ind.  46;  People 
V.  River  Raisin,  etc.,  R.  'Co.,  12  Mich.  389;  State  v.  Anderson,  26  Fla. 
240;  People  V.  Ridgeley,  21  111.  65;  State  v.  Town  of  Tipton,  109  Ind.  y2>', 
Thompson  v.  Moran,  44  Mich.  602 ;  State  v.  Boal,  46  Mo.  528 ;  State  v. 
Bulkeley,  61  Conn.  287;  State  v.  Lewis,  51  Conn.  113;  State  v.  Kelly,  2 
Kan.  App.  178;  People  v.  Mclntyre,  10  Mont.  166;  State  v.  Kearn,  17 
R.  I.  391;  State  V.  Kempf,  69  Wis.  470;  State  v.  Messmore,  14  Wis.  115; 
Davis  V.   State,  75   Tex.  420. 


3.     Plea  or  answer. 

CLARK  V.  PEOPLE  ex  rel.  CRANE. 

1853.     Supreme  Court  of  Illinois.     15  111.  213. 

Treat,  C.  J.  This  was  an  information  in  the  nature  of  a  quo 
warranto,  filed  on  the  relation  of  Crane,  against  Clark,  at  the  March 
Term,  1851,  of  the  Pike  Circuit  Court.  The  information  alleged  in 
substance,  that  at  the  December  Term.  1849,  of  the  Pike  County 
Court,  the  relator  was  appointed  trcastu-er  of  the  county,  to  fill  a 
vacancy  caused  by  the  death  of  the  incumbent;  and  he  thereupon 
pave  tin,'  rcf|uisite  bond,  took  the  proscribed  oath,  and  entered  upon 
the  duties  of  the  office;  that  he  continued  to  discharge  the  duties 


§  5  PLEADING^  PRACTICE  AND  PROCEDURE.  439 

until  September  12,  1850,  when  the  defendant  intruded  into  and 
usurped  the  office,  and  from  thenceforth  exercised  the  powers  and 
duties  pertaining  thereto.     *     *     * 

During  the  same  term,  the  defendant  filed  two  pleas,  to  which 
there  was  a  demurrer.     *     *     * 

(The  court  after  reciting  the  pleas  and  defining  the  powers  of  the 
county  court  in  removing  county  officers,  continues)  : 

The  first  plea  is  clearl}'^  defective.  It  fails  to  show  that  the  re- 
lator was  legally  dismissed  from  the  office  of  treasurer.  It  alleges 
that  he  was  removed  for  various  reasons  stated  in  an  order  of  the 
board  of  supervisors,  but  the  order  itself  is  not  set  forth.  The  rea- 
sons ought  to  appear  at  large  in  the  plea,  so  that  the  court  might 
determine  whether  the  removal  was  for  one  of^the  causes  specified 
in  the  statute.  A  dismissal  for  any  other  cause  would  not  create  a 
vacancy  in  the  office,  nor  justify  the  board  of  supervisors  in  appoint- 
ing the  defendant.  He  could  have  no  right  to  the  office,  unless  the  re- 
lator was  properly  removed  therefrom.  In  the  proceeding  by  infor- 
mation in  the  nature  of  a  quo  zvarranto,  the  defendant  must  either 
disclaim  or  justify.  If  he  disclaims,  the  people  are  at  once  entitled  to 
judgment.  If  he  justifies,  he  must  set  out  his  title  specially.  It  is  not 
enough  to  allege  generally  that  he  was  duly  elected  or  appointed  to 
the  office;  but  he  must  state  particularly  how  he  was  appointed  or 
elected.  He  must  show  on  the  face  of  the  plea,  that  he  has  a  valid 
title  to  the  office.  The  people  are  not  bound  to  show  anything.  The 
information  calls  upon  the  defendant  to  show  by  what  warrant  he 
exercises  the  functions  of  the  office,  and  he  must  exhibit  good  au- 
thority for  so  doing,  or  the  people  will  be  entitled  to  judgment  of 
ouster.  Cole  on  Criminal  Informations,  210  to  212;  Willcocks  on 
Municipal  Corporations,  486  to  488;  Angell  &  Ames  on  Corpora- 
tions, §  756. 

The  second  plea  is  also  too  general ;  it  does  not  state  how  the  of- 
fice became  vacant ;  nor  does  it  show  vl^ith  sufficient  certainty  how 
the  defendant  was  appointed.  The  third  plea  is  likewise  defective. 
The  defendant  does  not  attempt  to  set  out  his  title.  It  is  no  answer 
to  the  information,  that  the  relator  is  not  entitled  to  the  office.  The 
defendant  must  show  that  he  is  rightfully  in  office,  or  the  people  are 
entitled  to  judgment  against  him. 

But  there  is  an  error  in  the  judgment  for  which  the  judgment 
must  be  reversed.  It  does  not  appear  that  any  disposition  was  made 
of  the  two  pleas  first  filed.  The  record  only  shows  that  a  demurrer 
to  them  was  argued  and  taken  under  advisement.  It  fails  to  show 
that  any  decision  was  ever  made  by  the  court.  The  entry  of  the  22d 
of  March,  1852,  cannot  be  considered  as  applying  to  these  pleas. 
From  the  description  given,  it  manifestly  relates  to  the  second  set 
of  pleas.  The  judgment  was  entered  at  length  on  the  following  day, 
without  noticing  the  fact  that  the  order  sustaining  the  demurrer  had 
been  already  entered.    These  two  entries  evidently  refer  to  the  same 


440  PEOPLE  EX   REL.   FINNEGAN  V.   MAYWORM.  §    5 

set  of  pleas.  It  was  clearly  error  to  render  final  judgment  in  the 
case  without  disposing  of  the  demurrer  to  the  first  set  of  pleas. 
As  that  demurrer  has  not  been  decided,  this  court  has  no  authority 
to  pass  pon  the  sufficiency  of  these  pleas. 

The  judgment  must  be  reversed,  and  the  cause  remanded. 

Judgment  reversed. 

See  also  People  v.  Percells,  8  III.  59;  Commonwealth  v.  Cross  Cut  R. 
Co..  53  Pa.  62;  People  v.  Thompson,  16  Wend.  (N.  Y.)  655;  State  v.  Jones, 
16  Fla.  306;  State  v.  Gleason,  12  Fla.  190;  People  v.  Crawford,  28  Mich. 
88;  State  v.  Steers,  44  Mo.  223;  State  v.  Davis,  57  N.  J.  L.  80;  State  v. 
McGarry,   21    Wis.   496. 


4.     Replication  and  subsequent  pleadings. 

Where  new  matter  is  set  forth  in  the  plea,  a  replication  may  be 
filed  and  there  would  seem  to  be  no  reason  why  all  the  well  known 
pleadings  following  the  replication  at  common  law  are  not  permissi- 
ble, unless  changed  by  statute.  Demurrers  may  be  filed  to  the  infor- 
mation or  any  subsequent  pleading  and  when  so  filed  reach  back  to 
the  first  defect.  Amendments  to  pleas,  replications,  etc.,  are  usually 
freely  allowed. 


5.     Burden  of  proof. 

PEOPLE  EX  REL.  FIXXEGAN  v.  MAYWORM. 
1858.     Supreme  Court  of  Michigan.     5  Mich.  146. 

An  information  in  the  nature  of  a  quo  zvarranto,  having  been 
filed  against  the  defendant,  to  inquire  by  what  authority  he  assumed 
to  exercise  the  office  of  sheriff  of  the  county  of  Houghton,  and  sug- 
gesting that  Michael  Finnegan  is  entitled  to  the  office ;  an  informal 
plea  was  put  in.  claiming  the  office,  and  denying  any  usurpation; 
and  the  facts  arc  agreed  upon.     '*     *     " 

We  have,  first,  to  inffuirc  whether  Francis  Mayworm  has  made 
out  his  title  to  the  office.  If  it  sliould  turn  out  that  he  has  failed 
in  this,  the  question  will  still  remain,  whether  Finnegan  has  any 
rights  in  the  premises. 

Tt  appears  that  Mayworm  was  ap])ointed  on  the  25th  day  of  De- 
cember. 1856,  to  act,  for  the  time  being,  in  the  vacancy  created  by; 
the  resignation  of  John  r)Urns,  who.se  original  term  had  then  but  sbw 
or  seven  days  to  run.  This  ajipointment  ajipears  to  have  been  regu- 
lar. lUit  it  is  not  enough  that  an  officer  appointed  for  a  temporary 
purjiosc,  should  show  a  legal  appointment.  The  usurpation  charged 
is  a  continuing  usurpation,  alleged  to  exist  in  the  month  of  Jime, 
1857.  several  months  nftrr  the  conmicnocmcnt  of  a  new  statutory 


§    5  PLEADIiNG,    PRACTICE  AND   PROCEDURE.  44I 

term.  The  rule  is  well  settled,  that  zvhere  the  state  calls  upon  an 
indk'idual  to  shozc  his  title  to  an  office,  he  must  shozv  the  continued 
existence,  of  every  qualification  necessary  to  the  enjoyment  of  the 
office.  The  state  is  bound  to  make  no  showing,  and  the  defendant 
must  make  out  an  undoubted  case.  It  is  not  sufficient  to  state  the 
quahfications  necessary  to  the  appointment,  and  rely  on  the  pre- 
sumption of  their  continuance.  The  law  makes  no  such  presump- 
tion in  his  favor.  State  v.  Beecher,  15  O.  723;  People  v.  Phillips. 
I  Denio,  388 ;  State  v.  Harris,  3  Pike  570 ;  State  v.  Ashley,  i  Pike 

513- 

The  case  of  the  People  v.  Phillips  was  one  where  the  defendant 
as  here,  claimed  to  hold  over  for  the  want  of  a  legal  successor ;  and. 
instead  of  showing  that  no  person  had,  during  the  whole  period, 
been  chosen  in  his  stead,  merely  showed  one  abortive  election.  The 
court  held  he  was  bound  to  show  that  no  one  had,  at  any  time,  been 
chosen  to  succeed  him ;  and.  in  the  absence  of  this,  he  was  ousted. 
Mayworm  has  shown  here  that  P)urns  did  not  qualify,  and  that  Fin- 
negan  also  did  not.  Conceding,  for  the  present,  that  this  was  enough 
to  cut  them  both  both  off,  the  case  is  still  defective  in  not  showing 
affirmatively  that  the  vacancy  had  not  since  been  filled,  either  by 
election,  or  by  appointment  of  the  local  board.  For,  not  only  could 
the  board  of  supervisors  have  ordered  a  new  election  (i  Comp.  L,, 
103,  105),  which  would  be  valid,  at  least  against  all  persons  except 
the  candidate  chosen  at  the  general  election,  whether,  as  to  him,  it 
would  or  M'ould  not  be  valid ;  but  the  law  has  itself  provided  a  per- 
son upon  whom,  in  the  absence  of  any  sheriff  or  under  sheriff",  the 
duties  devolve,  to  the  exclusion  of  all  others.  F>y  section  435  (i 
Comp.  L.  210).  it  is  declared  that  when  there  shall  be  no  sheriff  or 
under-sheriff,  in  any  county,  the  judge  of  the  circuit  court  shall 
designate  one  of  the  coroners  to  perform  the  duties  of  sheriff.  The 
defendant  has  shown  that  when  he  was  appointed  for  the  time  being, 
there  was  no  coroner  in  office ;  but  he  has  not  shown  that  one 
was  not  elected  to  take  office  with  the  new  official  year ;  and.  for 
anything  that  appears  in  the  case,  his  own  rights  may  have  been  ter- 
minated, either  by  the  coming  in  of  a  coroner,  or  a  new  appointment 
or  election  to  the  vacancy  in  the  sheriff's  office.  Upon  this  state  of 
facts,  we  can  raise  no  presumption  in  his  favor,  and  the  state  is  en- 
titled to  judgment  of  ouster  against  him.     *     *     * 

Judgment  of  ouster  must  be  rendered  against  the  defendant  Fran- 
cis Mayworm,  and  also  that  Michael  Finnegan,  the  relator,  is  right- 
fully entitled  to  the  office  of  sheriff'  of  Houghton  county. 

Burden  of  proof  on  respondent. — People  v.  Utica  Ins.  Co.,  15  Johns. 
(N.  Y.)  358;  State  v.  Sharp,  27  Minn.  38;  State  v.  Saxon,  25  Fla.  342: 
People  V.  Crawford,  28  Mich.  88;  State  v.  Beardsley,  13  Utah,  502;  Mont- 
gomery V.   State,   107  Ala.  372. 


442  •  STATE  EX  REL.  liORNEFELD  V.   KUPFERLE.  ^    5 

STATE  EX  REL.  BORNEFELD  v.  KUPFERLE. 
1869.     Supreme  Court  of  Missouri.     44  Mo.  154. 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

This  is  an  information  in  the  nature  of  a  writ  of  quo  warranto, 
the  writ  itself  having  long  since  fallen  into  obsoleteness  and  disuse. 
The  information  initiates  a  civil  proceeding  to  try  the  right  to  an  of- 
fice, although  in  its  origin  and  form  it  partakes  of  a  criminal  char- 
acter, and  is  a  substitute  for  the  original  writ  of  quo  warranto.  But 
the  proceeding  is  essentially  civil,  and  that  is  the  established  doc- 
trine in  this  state.  (Brison  v.  Lingo,  26  Mo.  496;  McElhany  v. 
Stewart,  32  Mo.  379;  Hequoemberg  v.  Lawrence,  38  Mo.  535.)  The 
information,  answer,  and  reply  are  subject  to  the  rules  governing 
corresponding  pleadings  in  strictly  civil  causes — the  information  in 
this  regard  answering  to  the  petition  in  civil  suits.  The  question 
whether,  in  a  given  suit,  the  onus  of  proof  is  shifted  from  the  com- 
plaining party  to  his  antagonist,  must  be  determined  upon  an  exam- 
ination of  the  pleadings,  and  not  by  reference  to  the  form  and  his- 
tory of  an  obsolete  writ. 

Apply  these  principles  to  the  pleadings  in  the  present  suit. 
The  relator  initiates  the  proceeding,  and  alleges  in  the  mformation 
that  he  was  duly  appointed  secretary  of  the  German  Insurance  Com- 
pany, and  assumed  the  duties  of  that  office ;  that  on  the  second  day 
of  June,  1868,  a  minority  of  the  board  of  directors  of  the  insurance 
company  held  an  illegal  meeting,  assuming  to  be  a  quorum,  and 
without  warrant  of  law  appointed  two  associate  directors,  who  there- 
upon assumed  to  act  as  such  directors ;  that  the  board  thus  com- 
posed, illegally  and  without  notice  to  the  lawful  secretary,  in  viola- 
tion of  the  by-laws  of  the  company,  removed  that  officer  and  de- 
clared the  office  of  secretary  vacant,  and  thereupon  appointed  the  re- 
spondent to  fill  the  vacancy ;  that  the  respondent  without  any  legal 
appointment  or  authority,  assumed  the  place,  and  unlawfully  con- 
tinues therein,  excluding  the  relator — the  legal  secretary — there- 
from. This  is  the  substance  of  the  information,  although  it  contains 
various  other  recitals  and  averments,  and  sets  out  in  full  certain  by- 
laws which  are  sup])Osed  to  have  been  violated  by  the  proceedings 
complained  of. 

The  answer  denies  the  material  averments  of  the  information, 
and  then  proceeds  to  allege  affirmatively  a  state  of  facts  substantially 
negativing  the  allegations  of  the  information,  and  asserting  the  en- 
tire regularity  of  the  jiroceeding  of  the  directors  in  declaring  the  of- 
Hce  of  secretary  vacant,  and  in  the  appointment  of  the  respondent 
thereto.  The  relator  re])lies,  denying  the  affirmative  allegations  of 
the  answer. 

In  that  state  of  pleadings,  on  whom  is  the  burden  of  proof?  That 
is  the  material  question  in  the  case.     Aside  from  an  admission  on 


^    5  PLEADING,    TUACTICK   AND   I'ROCKDUKK.  443 

the  part  of  the  respondent  that  the  relator  was  legally  in  office  prior 
to  the  second  day  of  June,  1868,  and  until  the  office  was  declared 
vacant  on  that  day,  neither  party  introduced  any  testimony  at  the 
hearing- — each  claiming  that  the  burden  of  proof  was  on  the  other. 
The  court  held  that  the  onus  was  upon  the  relator,  and  gave  judg- 
ment accordingly. 

This  is  a  civil  proceeding  as  already  shown ;  and  unless  it  is  to  be 
taken  out  of  the  category  of  other  civil  causes,  in  respect  to  the 
form  and  methods  of  trial,  the  judgment  of  the  circuit  court  was 
clearly  right. 

The  answer  denies  everything  and  the  presimiptions  in  law  are 
all  against  the  relator,  and  yet  it  is  claimed  that  the  affirmative  is 
on  the  respondent.  We  hold  differently.  Every  reasonable  intend- 
ment is  to  be  made  in  favor  of  the  regularity  of  the  proceedings  com- 
plained of.  They  w^ere  the  acts  of  a  private  corporation,  and  are  to 
be  presumed  regular  until  the  contrary  appears.  (22  Verm.  274.) 
It  is  alleged  that  two  of  the  parties  who  acted  were  illegally  put 
upon  the  board  of  directors.  But  they  acted  as  directors  notwith- 
standing, and  were  directors  de  facto.  (Ang.  &  A.  on  Corporations, 
§  759.)  In  State  ex  rcl.  Danforth  ct  al.  v.  Hunton  et  al,  28  Verm. 
594,  which  was  a  quo  zmrranto  proceeding,  it  was  held  that  although 
the  form  of  the  issue  required  the  defendants  to  show  cause,  and 
would  therefore  seem  to  indicate  that  the  defendants  should  go  for- 
ward, still  the  onus  was  on  the  relators;  that  the  form  of  the  issue 
did  not  correctly  define  the  true  position  of  the  parties  in  regard  to 
the  presumptions  of  right.  The  court  said :  "The  defendants  are  in 
the  possession  of  the  office  in  question  and  should  be  presumed  regu- 
larly elected  and  entitled  to  hold  until  the  contrary  is  shown.  The 
plaintiffs,  then,  are  bound  to  make  a  case  against  them,  and  they 
should  go  forward  in  the  proof  and  in  the  argument."  This  puts 
the  matter  on  clear  and  reasonable  ground,  and  there  is  nothing  in 
our  statute  to  require  a  different  and  less  reasonable  practice.  The 
New  York  Court  of  Appeals,  in  a  late  case,  held  the  same  doctrine 
announced  in  the  case  from  Vermont.  (See  People  v.  LaCoste,  37 
N.  Y.  192 ;  State  v.  Brown,  34  Miss,  688.) 

This  view  of  the  subject  substantially  disposes  of  the  motion  in 
arrest.  The  proceedings  of  the  board  of  de  facto  directors  are  to 
be  presumed  regular  until  irregularity  is  shown.  They  are  not  to  be 
presumed  irregular.  The  twenty  second  by-law,  set  out  in  the  in- 
formation, provides  that  "officers,  except  the  president  and  vice- 
president,  shall  hold  their  offices  until  removed  by  a  majority  of  the 
directors  on  a  charge  of  disability,  violation  of  duty,  or  any  other 
sufficient  cause."  Under  this  rule  the  secretary  was  removable 
when  the  directors  should  consider  there  w^as  sufficient  cause  for  it. 
and  they  w'ere  the  judges  of  the  sufficiency  of  the  cause.  No  formal 
notice  of  trial  or  charges  was  requisite.  A  majority  of  the  de  facto 
board  of  directors  considered  that  a  sufficient  cause  of  removal  had 


4^14  COMMONWEALTH    V.    ALLEN.  §    5 

arisen,  and  accordingly  removed  the  secretary,  as  the  information 
shows,  and  put  another  man  in  his  place.  Until  their  action  is  im- 
peached by  proof,  it  is  to  be  presumed  that  they  acted  on  sufficient 
grounds. 

Let  the  judgment  be  affirmed.    The  other  judges  concur. 

See  also  People  v.  Lacoste,  Z7  N.  Y.  192;  State  v.  Hunton,  28  Vt.  594; 
Commonwealth  v.  Filer,  30  Pitts.  Leg.  J.  296;  People  v.  Perky,  80  N.  Y. 
624. 


6.     Statute  of  limitations  no  bar. 

COMMONWEALTH  v.  ALLEN. 

1880.     Supreme  Judicial  Court  of  Massachusetts.     128  Mass. 

308. 

Information  in  the  nature  of  a  quo  zvarranto,  filed  August  11, 
1879,  by  the  attorney  general  in  behalf  of  the  commonwealth,  and 
at  the  relation  of  two  citizens  of  New  Bedford,  alleging  that  the 
defendant  was  usurping  the  office  of  chief  of  police  of  the  city  of 
New  Bedford.     *     *     * 

Gray,  C.  J.  This  is  an  information  at  common  law,  not  regu- 
lated by  any  statute,  for  the  usurpation  of  an  office,  which  the  attor- 
ney general  has  the  right  to  file  ex  oificio  in  the  name  and  behalf  of 
the  commonwealth,  at  his  own  discretion,  and  leave  to  file  which 
the  court  has  no  authority  to  grant  or  to  withhold ;  and  the  mention 
of  relators  is  mere  surplusage,  and  does  not  affect  the  validity  of  the 
information  or  the  form  of  the  judgment  to  be  rendered  thereon. 
Commonwealth  v.  Fowler,  10  Mass.  290;  Goddard  v.  Smithett,  3 
Ciray  it6;  Cole  on  Informations,  196.  The  lapse  of  time  between 
the  defendant's  assumption  of  the  office  and  the  instittttion  of  this 
proceedinc^,  whatever  effect  it  mif^ht  have  as  against  a  private  per- 
son, cannot  bar  the  right  of  the  commomvealth  suing  by  its  attorney 
general.     *     *     * 

Judgment  of  ouster. 

Two  views  are  equally  admissible,  to  sustain  the  proposition  that  the 
statute  of  limitations  is  no  bar  to  an  action  in  quo  7varranto.  Adopting 
the  view-point  that  all  actions  in  quo  warranto  are  actions  in  which  the 
real  plaintiff  is  the  state,  complaining  against  some  infringement  upon 
its  sovereign  powers;  the  maxim  "tcmpus  non  occurrit  rcp,i,"  will  then  apply. 
Or  tlie  view  may  be  adopted  that  every  usurpation,  whether  of  an  office 
or  franchise  like  every  breacn  of  a  condition  in  a  charter,  constitutes  a 
rnntmuinR  usurpation   of   breach   and  coiiscqucntly   the    statute   cannot   apply. 


§    5  PLEADING,    I'RACTICE  AND   PKOCEDUKE.  445 

7.     General  matters  of  jjractice. 

STATE  EX  REL.  MILLER  v.  SEYMOUR. 

1902.     Supreme  Court  of  New  Jersey.     67  N.  J.  L.  482,  51  Atl. 

719. 

Quo  warranto  by  the  state,  on  the  relation  of  Walter  H.  Miller 
against  John  Seymour.  Motion  to  quash  information  and  discharge 
rule  to  plead,  and  for  a  rule  to  show  cause.  Rule  to  show  cause  dis- 
charged. 

Garretson,  J.  These  proceedings  are  intended  to  test  the  title 
of  the  respondent  to  the  office  of  president  of  the  common  council 
of  the  city  of  Orange.  Two  motions  are  presented  to  the  court 
under  the  above  title.  The  first  is  a  motion  to  vacate  a  rule  to  plead 
to  an  information  in  the  nature  of  a  writ  of  quo  zvarranto  exhibited 
by  the  attorney  general  at  the  relation  of  a  private  relator,  and  to 
quash  the  information,  and  the  second  is  a  motion  for  a  rule  to  show 
cause  why  a  quo  warranto  should  not  issue.  The  grounds  for  the 
motion  to  vacate  the  rule  to  plead  and  to  quash  the  information  are 
that  the  defendant  had  not  been  served  with  anv  process  prior  to  the 
filing  of  the  infomiation  and  the  entering  of  the  rule  to  plead,  and 
had  not  then,  and  has  not  since,  been  brought  into  court :  because  the 
information  was  filed  without  the  leave  of  the  supreme  court  first 
had,  and  without  notice  to  the  defendant :  and  because  the  informa- 
tion was  sued  out  in  the  name  of  a  private  relator,  and  without  the 
granting  of  a  rule  to  show  cause,  or  any  opportunity  given  to  the  de- 
fendant to  show  that  the  relator  was  irresjx)nsible,  or  was  acting  in 
bad  faith,  or  that  public  interests  would  be  jeopardized  by  the  insti- 
tution of  cjio  zvarronfo  proceedings.  This  motion  raises  the  question 
of  the  proper  procedure  to  be  followed  in  the  institution  of  proceed- 
ings by  information  in  the  nature  of  a  quo  warranto  at  the  relation 
of  a   private   relator. 

The  information  in  this  case  signed  by  the  attorney  general,  by 
the  attorney  for  the  relator,  and  indorsed,  "Let  this  information  be 
filed.  David  A.  Depue,  C.  J."  was  filed  without  any  notice  to  the 
defendant,  and  the  next  proceeding  was  the  rule  to  plead  on  the 
defendant.  The  attorney  general  may  file  an  information  ex  oificio 
in  his  own  name,  without  any  relator,  without  leave  of  the  court, 
and  without  notice  to  the  defendant.  The  manner  of  bringing  in  a 
defendant  upon  an  information  filed  by  the  attorney  general  ex 
officio  is  set  forth  in  the  case  of  Attorney  General  v.  Delaware  &  B. 
B.  R.  Co.,  38  N.  J.  L.  282,  where  the  court  says  the  proper  practice 
was  pursued  in  the  case  of  State  v.  Associates  of  Jersey  Co..  in 
1849,  "which  was  of  this  sort".  "On  filing  the  information  the 
summons  was  issued,  returnable  the  following  term,  served  upon 
the  secretary  of  the  company,  and  upon  its  return  a  rule  was  taken 


446  STATE  EX    REL.    MILLER  V.   SEV:M0UR.  .§    5 

on  the  defendants  to  plead  in  thirty  days.  That  practice  may  well 
be  followed,  modified  only  by  our  change  of  time  as  to  return  of 
process.  The  summons  may  be  returnable  in  vacation,  and  may  be 
served  in  the  mode  in  which  summonses  can  be  served  in  ordinary 
actions,  and  upon  its  return  a  rule  to  plead  may  be  allowed,  by  the 
court  or  justice."  In  the  case  of  Ford  v.  Turnpike  Co.,  21  N.  J.  L. 
9,  it  was  held: — "This  is  a  proper  application  in  behalf  of  the  re- 
lators, and  not  a  proceeding  instituted  by  the  attorney  general.  If 
the  attorney  general  on  behalf  of  the  state,  was  about  to  institute 
this  proceeding,  he  need  not  ask  the  permission  of  this  court  for  the 
purpose.  The  institution  of  proceedings  of  this  character  at  the  in- 
stance of  the  relators,  under  the  leave  of  the  court,  is  authorized  by 
statute,  and  only  by  statute.  "No  instance",  said  Lord  Mansfield  in 
Rex  V.  Marsden,  i  W.  Bl.  580,  "has  been  produced  of  informations 
in  nature  of  quo  warranto  before  the  statute,  unless  filed  by  the  at- 
torney general.  The  courts  at  common  law  and  in  cases  not  within 
the  statute,  have  no  authority  to  direct  such  information,  and  leave 
the  matter  to  the  discretion  of  the  attorney  general." 

This  proceeding  must  be  regarded  as  under  our  statute  of  1795 
(2  Gen.  Sts.,  p.  2632),  which  is  copied  substantially  from  the  statute 
of  9  Anne,  ch.  20,  and  provides  "that  in  case  any  person  or  persons 
siiall  usurp,  etc.,  any  office  or  franchise  Vvithin  this  state,  it  shall  and 
may  be  lawful  to,  and  fcr  the  attorney  general,  with  the  leave  of  the 
supreme  court,  to  exhibit  one  or  more  information  or  informations 
in  the  nature  of  a  quo  ivarranto  at  the  relation  of  any  person  or 
persons  desiring  to  sue  or  prosecute  the  same,  who  shall  hit 
mentioned  in  such  information  or  informations  to  be  the 
relator  or  the  relators  against  such  person  or  persons  for 
usurping,  etc.,  any  such  office  or  franchise,  and  to  proceed  therein 
in  such  manner  as  is  usual  in  cases  of  information  in  the  nature  of  a 
quo  xvarranto."  Under  the  above  statute  an  information  cannot  be 
filed  without  leave  of  the  su])reme  court,  and  this  permission  is  not 
formal  merely,  but  has  been  held  to  depend  upon  the  sound  discretion 
of  the  court,  according  to  the  particular  circumstances  of  the  case, 
made  upon  an  application  for  leave  to  file  an  information.  In  Mil- 
ler v.  Utter,  14  N.  J.  L.  84,  the  court  says: — "The  granting  of  an 
information  is  not  now  a  mere  matter  of  course,  but  depends  upon 
the  sound  discretion  of  the  court,  according  to  the  ]:)articular  circum- 
stances of  the  case  made  upon  the  api:)lication  for  leave  to  file  an 
information."  In  Mitchell  v.  Tolan,  33  N.  j.  L,  105,  "The  granting 
or  witholding  of  leave  to  file  an  information  in  the  nature  of  quo 
warranto  at  the  instance  of  a  private  relator  rests  in  the  sound  dis- 
cretion of  the  court,  even  where  a  good  objection  to  the  title  of  the 
person  whose  right  is  called  in  question  is  shown."  In  Roche  v. 
Bnicgcman,  ^%  N.  J-  I-  T22,  20  Atl.  730,  "the  court  has  adhered  to 
the  practice  that  a  sounrl  discretion  must  be  exercised  upon  the  par- 
ticular circumstances  of'cver\-  case."     If,  llun,  such  information  can 


§5  PLEADING,    PRACTICE  AND   PROCEDURE.  447 

only  he  filed  by  a  private  relator  after  the  exercise  of  its  discretion 
by  the  court,  it  would  necessarily  follow  that  that  discretion  must 
be  exercised  upon  a  hearing,  of  which  the  defendant  has  notice.  The 
defendant  had  no  notice  in  this  case  until  after  the  information,  and 
therefore  the  information  filed  must  be  quashed,  and  the  rule  to 
plead  vacated. 

The  practice  in  cases  of  informations  in  nature  of  quo  warranto 
at  the  instance  of  private  relators  so  far  as  the  reported  cases  dis- 
close, has  generally  been  to  institute  such  proceedings  by  a  rule  to 
show^  cause.  In  some  of  the  cases  all  the  questions  to  be  considered 
have  been  raised  by  pleas  or  demurrers  to  the  information,  and  the 
report  does  not  disclose  the  proceedings  anterior  to  the  filing  of  the 
information ;  but  rules  to  show  cause  appear  to  have  been  granted 
in  the  following  cases :  Miller  v.  Utter,  14  N.  J.  L.  84 ;  Ford  v. 
Turnpike  Co.,  21  N.  J.  L.  9;  Michell  v.  Tolan,  33  N.  J.  L.  195; 
Richards  v.  Hammer,  42  N.  J.  L.  435  ;  Roche  v.  Bruggemann,  53  N. 
J.  L.  122,  20  Atl.  730.  The  only  case  suggesting  a  different  course 
of  practice  is  that  of  Casterline  v.  Gummersall,  24  N.  J.  L.  529, 
which  was  a  motion  to  set  aside  the  information,  and  a  rule  to  plead 
granted  at  the  same  time,  on  the  grounds  that  the  application  in  the 
first  instance,  should  have  been  for  a  rule  to  show  cause,  and  that 
if  the  information  may  be  filed  in  the  first  instance,  the  defendant 
must  be  served  with  process  to  appear  before  a  rule  can  be  taken 
upon  him  to  plead.  The  court  in  that  case  held  that  it  had  been  de- 
cided, in  State  v.  Freeland,  that  in  the  case  of  a  corporation,  or  a 
high  public  officer,  a  rule  to  show  cause  is  first  allowed,  but  not  in 
the  case  of  a  small  township  ofiicer,  but  did  not  adopt  that  as  the  rule 
in  the  case  at  hand,  but  held  "that  the  defendant  should  be  regu- 
larly brought  in  by  process,  and  then  ruled  to  plead  at  as  short  a 
day  as  the  nature  of  the  case  will  admit."  But  such  practice  seems 
to  lose  sight  of  the  statutory  requirement  that  the  information  can 
only  be  filed  with  the  leave  of  the  supreme  court,  and  when  the 
court,  in  the  exercise  of  its  discretion,  is  satisfied  that  permission 
should  be  granted.  The  proper  practice  in  all  cases  where  an  infor- 
mation is  sought  at  the  instance  of  a  private  relator  is,  in  the  first 
instance,  to  apply  for  a  rule  to  show  cause. 

Application  is  made  in  the  case  at  hand  for  a  rule  to  show  cause 
why  an  information  in  the  nature  of  a  writ  of  quo  zvarranto  should 
not  be  filed,  and  a  stipulation  of  facts  has  been  agreed  upon,  setting 
forth  that  the  relator  is  a  resident  and  taxpayer  of  Orange ;  that  he 
voted  at  the  election  held  in  Orange  in  April,  1900,  for  the  office  of 
President  of  the  Common  Council,  to  which  Seymour  was  elected ; 
that  he  voted  against  Seymour;  that  he  made  no  objection  to  Sey- 
mour assuming  the  duties  of  the  office  of  president  of  the  council ; 
that  he  never  questioned  the  right  of  Seymour  to  preside  at  the 
meetings  of  common  council,  and  to  vote  on  questions  pending  be- 
fore said  council,  until  after  the  meeting  of  said  council  held  Sep- 


4^8  STATE  EX   KEL.    MILLER  V.   SEYMOUR.  §    5 

tember  9,  1901,  at  which  the  contract  for  hghting  the  streets  of 
Orange  was  awarded  to  the  United  Electric  Company ;  that  he  is  an 
emplm-e  of  a  phonograph  company  of  which  one  Gilmore,  who,  as 
president  of  the  National  Electric  Light,  Heat  &  Power  Company, 
signed  a  bid  for  street  lighting  in  Orange  for  five  years,  is  also 
president,  and  that  he  applied  for  the  rule  to  show  cause  and  also 
filed  his  information  at  the  request  of  Gilmore ;  that  the  National 
Electric  Company  was  incorporated  July  16,  1901  ;  that 
Gilmore  is  president  of  the  company ;  that  no  certificates  of 
stock  of  said  company  have  been  issued  to  anyone  except  the  in- 
corporators and  their  assigns ;  that  no  money  has  been  paid  into 
the  treasury  of  the  company ;  that  Gilmore  was  not  an  incorporator 
of  the  company ;  that  he  has  never  subscribed  to  the  capital  stock 
of  the  said  company  ;  that  no  subscriptions  to  the  capital  stock  of  the 
said  company  have  been  made  in  writing:  that  said  company  owns 
no  real  estate ;  that  said  company  has  no  plant  either  in  operation  or 
under  construction,  in  the  state  of  New^  Jersey,  or  in  any  other  place, 
from  which  lights  for  lighting  the  streets  of  Orange  could  be  pro- 
duced ;  that  said  company  has  no  contracts  in  writing  or  otherwise 
for  equipping  an  electric  lighting  station,  or  for  building  a  building 
suitable  for  an  electric  lighting  plant ;  that  a  plant  suitable  for  light- 
ing the  streets  of  the  city  of  Orange  could  not  be  constructed  from 
the  time  of  the  said  application,  for  the  rule  to  show  cause,  October 
25.  1 90 1,  and  December  i,  1901. 

The  sti])ulated  facts  show  clearly  that  the  relator  acquiesced  in 
the  election  of  the  defendant,  and  permitted  him  to  exercise  the 
duties  of  the  office  which  he  now  attacks,  for  nearly  eighteen  months, 
without  attempting  to  question  in  any  w^ay  the  legality  of  the  office, 
and  that  he  now  does  it  at  the  instance  of  the  president  of  a  private 
corporation  for  the  purpose  of  promoting  the  private  inrerests  of 
that  corporation.  Mitchell  v.  Tolan.  suf^ra:  Shortt,  Information, 
Mandamus  &  Prohibition,  149. 

The  rule  to  show  cause  will  be  refused. 

See  also  Commonwealth  v.  Jones.  \2  Pa.  St.  365;  Harris  v.  Pounds,  66 
Ga.  123;  Mathews  v.  State.  82  Tex.  577;  Gilroy  v.  Commonwealth,  105  Pa. 
St.  484;  State  V.  Rose.  84  Mo.  198;  Capital  City,  etc.,  v.  State.  105  Ala. 
406:  People  V.  Waite,  6  Chicago  Leg.  News,  175;  Rex  v.  Orde,  8  A.  &  E. 
420  n. 

As  to  costs  see  Moss  v.  Patterson.  40  Kan.  726;  State  v.  Jenkins,  46 
Wis.  616;    People  v.  Clute,  52  N.  Y.  576. 

As  to  the  nature  and  manner  of  serving  tlie  rule  to  show  cause,  see 
United  States  v.  Lockwood,  i  Pinncv  (Wis.),  359:  People  v.  Golden  Rule. 
114  111.  34;  State  V.  Barron,  57  N.  H.  498:  People  v.  Richardson,  4  Cow. 
(N.   Y.)    97;    Commonwealth   v.    Sprenger,   5    Binn.    (Pa.)    353. 

•  As  to  the  judgment,  sec  Campbell  v.  Talbot,  132  Mass.  174;  CentraV. 
etc..  K.  Co.  V.  People,  5  Colo.  39;  Smith's  Case,  4  Mod.  53;  State  v.  Brad- 
ford, .32  Vt.  50;  Hammer  v.  State,  44  N.  J.  L.  667;  Miners'  Bank  v.  United 
States,  5  How.   (U.  S.)  213;  People  v.  O'Brien,  in   N.  Y.  i. 


_§    5  PLEADING,    I'RACTICE   AND   PROCEDURE.  449 

Where  the  relator  is  a  private  citizen  the  usual  practice  is  to  file 
Tiis  application  or  petition  in  the  proper  court,  asking-  leave  to  file 
an  information.  Such  petition  should  set  forth  all  the  material  facts 
upon  which  relator  bases  his  claim  for  relief  and  should  be  verified. 
Upon  the  filing  of  such  petition  the  court  will  usually  issue  a  rule 
to  show  cause  and  unless  respondent  shows  such  cause  on  the  re- 
turn the  rule  will  be  made  absolute,  and  the  mformation  will  be  al- 
lowed to  be  filed.  Where  the  state's  attorney,  acting-  ex  officio,  ap- 
pears as  plaintiff  or  relator,  no  petition  is  necessary  but  the  informa- 
tion is  filed  as  of  course.  The  application  should  be  accompanied 
iDy  affidavits  containing  positive  allegations  of  facts  upon  which  re- 
lator bases  his  prayer  for  relief.  The  rule  to  show  cause  is  not  suffi- 
cient to  bring  respondent  into  court ;  he  must  be  brought  in  by  the 
ordinary  and  regular  process.  An  appearance  of  respondent  to  the 
rule  to  show  cause  is  not  an  appearance  to  the  information  and  no 
judgment  can  be  entered  against  him  save  co  make  the  rule  absolute. 

Amendments  to  the  information  are  freely  allowed  as  in  pleadings 
in  ordinary  civil  actions  and  defects  merely  in  form  are  not  suffi- 
cient ground  to  sustain  a  motion  to  quash.  So  the  effect  of  a  de- 
fault in  answering  or  pleading  to  the  information  is  as  a  default  in 
ordinary  civil  actions.  Issues  of  fact  arising  in  quo  tvarranto  pro- 
ceedings may  be  sent  to  a  jury  for  trial  and  chang-es  of  venue  may 
be  awarded  as  in  civil  actions.  So,  too,  a  new  trial  may  be  awarded 
where  the  verdict  appears  contrary  to  the  weight  of  the  evidence  or 
for  other  error  made  by  the  trial  court. 

Respondent  when  answering  to  the  rule  to  show  cause  may  file 
counter  affidavits,  and  if  these  appear  to  be  sufficient  in  opposition 
to  relator's  allegations,  the  rule  will  be  discTiarged.  Costs  will  usu- 
ally be  awarded  to  the  successful  party.  Although  the  statute  of 
Anne  and  most  of  our  modern  statutes  authorize  a  fine,  such  fine 
when  levied  will  usually  be  merely  nominal. 


CHAPTER  III. 

PROHIBITION. 

Section  1. — Definition  and  General  Principles  Governing  the  Writ. 

I.     Definition. 

"As  all  external  jurisdiction,  whether  ecclesiastical  or  civil,  is  de- 
rived from  the  crown,  and  the  administration  of  justice  is  committed 
to  a  great  variety  of  courts,  hence  it  hath  been  the  care  of  the  crown, 
that  these  courts  keep  within  the  limits  and  bounds  of  their  sev- 
eral jurisdictions  prescribed  by  the  laws  and  statutes  of  the  realm. 
And  for  this  purpose  the  writ  of  prohibition  was  framed;  which  is- 
/  siies  out  of  the  superior  courts  of  common  law  to  restrain  the  in- 
ferior courts,  whether  such  courts  be  temporary,  ecclesiastical,  mari- 
time, military,  etc.,  upon  a  suggestion  that  the  cognizance  of  the 
matter  belongs  not  to  such  courts ;  and  in  case  they  exceed  their 
jurisdiction  the  officer  who  executes  the  sentence,  and  in  some  cases 
the  judges  that  gave  it,  are  in  such  superior  courts  punishable, 
sometimes  at  the  suit  of  the  king,  sometimes  at  the  suit  of  the  party, 
sometimes  at  the  suit  of  both,  accordmg  to  the  nature  of  the  case. 

The  object  of  prohibitions  in  general  is,  the  preservation  of  the 
right  of  the  king's  crown  and  covirts.  and  ^he  ease  and  quiet  of  the 
subject.  For  it  is  the  wisdom  and  policy  of  the  law,  to  suppose  both 
best  preserved  when  everything  runs  in  its  right  channel,  according 
to  the  original  jurisdiction  of  every  couit;  ior  by  the  same  reason 
that  one  court  might  be  allowed  to  encroach,  another  might ;  which 
could  produce  nothing  but  confusion  and  disorder  in  the  adminis- 
tration of  justice. 

So  that  prohibitions  do  not  import  that  the  ecclesiastical  or  other 
inferior  temporal  courts  are  alia  than  the  king's  courts,  but  signify 
that  the  cause  is  drawn  ad  aliiid  cxamen  than  it  ought  to  be ;  and 
therefore  it  is  always  said  in  all  prohibitions  (be  the  court  ecclesias- 
tical or  temporal  to  which  they  are  awarded)  that  the  cause  is  drawn 
ad  aliiid  examen  contra  coronam  ct  dignitatem  rcgiam."  8  Bacon's 
Ab.  206,  tit.  "Prohibition." 

lUackstone  defines  Prohibition  as  "a  writ  =)=  *  *  ^yxfictcd- to 
the  judge  and  parties  of  a  suit  in  any  inferior  court,  commanding 
Them  to  cease  from  the  prosecution  thereof ;  upon  a  suggestion  that 
cither  the  cause  originally,  or  some  collateral  matter  arising  therein, 
does  not  belong  to  that  jurisdiction,  but  to  the  cognizance  of  some^ 
other  court."    3  P.lackstone  it2. 

450 


?    I  PKOIIiniTION,   IN   GENERAL.  45! 

^  The  writ  as  it  is  used  today  may  be  defined  as  an  extraordinary 
wnt  issuing  out  of  a  court  of  sirperTor  jurisdiction  and  directed  to 
an  inferior  court  or  tribunal,  commanding  the  latter  to  refrain  from 
iTStirping  or  exercising  a  jurisdiction  witli^  which  it  is  not  legally 
vest    "       — -— •  -   •       —  -- 


STATE  EX  REL.  ELLIS  et  al.  v.  ELKIN  et  al. 
1895.     Supreme  Court  of  Missouri.     130  Mo.  90. 

Barclay,  J.  This  is_an_original  proceeding  for  a  writ  of  pro- 
hibition. "       '  ^" 

The  petitioners  who  ask  the  writ  are  citizens  and  taxpayers  of 
Montgomery  Count}-. 

The  defendants  are  the  judges  of  the  county  court  of  that  county. 

The  subject  of  controversy  is  the  removal  of  the  county  seat. 

The  application  for  the  writ  was  first  made  to  this  division  of  the 
court,  February  5,  1895,  by  certain  petitioners  who  afterwards  re- 
tired from  the  case ;  but  before  they  were  well  out,  the  persons  now 
prosecuting  the  action  came  in,  and  were  made  parties  demanding 
the  desired  writ. 

The  defendants  have  made  return,  showing  their  cause  why  the 
prohibition  should  not  go. 

Upon  this  return  the  petitioners  have  moved  for  judgment. 

This  motion  for  judgment  upon  the  return  must  be  taken  to  ad- 
mit all  facts  well  pleaded,  in  the  return;  and  upon  that  motion  the 
cause  has  been  submitted. 

The  return  of  defendants  is  accompanied  with  several  exhibits  of 
copies  of  records,  bearing  on  the  point  on  which  our  judgment  is 
asked. 

The  principal  facts  that  control  the  result  are  not  disputed.  Their 
legal  effect  alone  is  in  controversy. 

During.last  summer,  the  county  court  of  Montgomery  (upon  due 
application,  the  sufficiency  of  which  is  not  questioned),  ordered  that 
a  proposition  to  remove  the  seat  of  justice  of  that  count}'  from  Dan- 
ville to  the  ctty  of  Montgomery  be  subniitted  to  the  qualified  voters 
of  the  county  at  the  general  election  November  6,  1894!  ^  " 

The  proposition  was  according!}'  submitted. 

Wlien  the  returns  of  the  election  had  been  received,  the  count v 
clerk  and  two  justices  of  the  county  court,  made  a  canvass  of  them, 
November  8,  1894,  and  the  record  then  made  of  the  result  (so  far  as 
relates  to  the  removal  of  the  county  seat)  is  given  by  "Exhibit  B"  of 
the  return,  as  shown  in  the  statement  preceding  this  opinion. 


452        STATE  KX    REL.  ELLIS  ET  AL.  V.    ELKIN  ET  AL.         ^  I 

Afterwards  December  26,  1894,  the  county  court  took  action  upon 
the  subject,  in  the  manner  described  by  the  record  which  forms 
"Exhibit  C"  of  the  defendants'  return  (also  given  in  the  statement). 

The  commissioners  to  locate  the  seat  of  justice  in  Montgomery 
City  under  the  order  of  December  26,  1894,  were  to  meet  February 
9,  1895,  ^^'t  the  rule  in  prohibition  in  this  action  was  served  upon 
the  defendants,  as  judges  of  the  county  court,  February  6,  1895. 

The  general  position  of  the  petitioners  is  that  the  order  for  the 
removal  of  the  county  seat  was  without  authority  and"  void. 

To  this  contention  defendants  made  several  answers,  each  of 
which  will  be  considered. 

I.  It  is  first  insisted  that  prohibtion  is  not  properly  allowable 
to  stop  action  by  a  county  court  in  regard  to  the  removal  of  the 
county  seat. 

It  is  very  true  that  the  subject  matter  of  changing  the  location 
of  a  county  seat  belongs  to  the  administrative  department  of  the 
county  court.  That  has  often  been  asserted  in  decisions  of  the 
supreme  court,  the  latest  of  which  is  St.  Louis,  etc..  Co.  v.  Citv 
(1887),  92  Mo.  165   (4  S.  W.  Rep.  665.) 

In  one  case  it  was  held  that  prohibition  would  not  lie  to  prevent 
action  by  the  county  court  in  ordering  the  removal  of  the  county 
seat,  where  the  court  was  proceeding  under  the  law  of  1855,  which 
required  only  a  majority  vote  for  such  removal,  while  the  case  (as 
the  supreme  court  held)  was  really  governed  by  the  law  of  1865, 
which  required  two-thirds  majority  to  carry  the  proposition.  State 
ex  rcl.  West  v.  Clark  Co.,  (1867)  41  Mo.  44.  In  that  judgment, 
however,  the  court  pointed  out  the  difiference  between  the  exercise 
of  judicial,  and  merely  administrative  powers,  with  reference  to 
the  use  of  the  writ  of  prohibition. 

Under  the  existing  constitution  and  laws,  there  is  no  question 
of  the  size  of  the  majority  required  to  authorize  the  county  court 
to  act.  "No  county  seat  shall  be  removed  unless  two-thirds  of  the 
<|ualified  voters  of  the  county,  voting  on  the  proposition  at  a 
general  election,  vote  therefor,"  savs  the  organic  law  (Art.  9,  sec. 
2). 

'I'iie  statute  law  conforms  to  that  command.  (R.  S.  1889,  § 
3138.) 

It  is  the  duty  of  the  county  court,  under  section  3145  (R.  S. 
T88f/)  to  perform  the  final  act  in  the  removal,  by  certifying  its 
belief  that  tlic  commissioners  have  selected  the  most  suitable  place 
for  the  public  buildings  ncces.sary  to  the  scat  of  justice.  In  so 
fining,  the  county  court,  no  doubt,  acts  in  its  administrative  capacity. 
Iiidcfd,  the  whole  proceedings  for  the  change  of  a  county  seat 
belong  to  the  same  general  department  of  governmental  activity 
v.hich   that  court  exercises   in   the  control  of  the  county  property 


§     I  PROHIBITION,   IN   GENERAL.  453 

and  county  finances.  IIul  the  action  of  the  court,  even  on  such 
subjects,  is  not  beyond  the  control  of  the  law. 

The  writ  of  prohibition  is  applicable  whenever  judicial  functions 
are  assumed  which  do  not  rightfully  belong  to  the  person  or  court 
assuming  to  exercise  those  functions. 

It  is  the  nature  of  the  act  which  determines  the  propriety  of  the 
writ. 

The  county  court,  no  less  than  other  courts,  can  be  prohibited  from 
proceeding  to  give  efifect  co  acts  of  a  judicial  character  which  it  has 
no  lawful  jurisdiction  to  perform. 

The  writ  is  as  available  to  keep  a  court  within  the  limits  of  its 
power  in  a  particular  proceeding  as  it  is  to  prevent  the  exercise 
of  jurisdiction  over  a  cause  not  given  by  the  law  to  its  consider- 
ation. 

Let  us  then  examine  the  nature  of  the  power  exerted  by  the 
county  court  in  its  action  December  26,  1894. 

The  county  clerk,  in  conjunction  with  two  judges  of  the  court, 
Nov.  8,  1894,  had  made  a  canvass  of  the  returns  on  the  proposition 
for  the  removal  of  the  county  seat.  They  then  had  ascertained  and 
certified  that  that  proposition  received  twenty-two  hundred  and 
twenty-six  votes,  and  that  twelve  hundred  and  thirteen  votes  had 
been  cast  against  the  removal. 

That  certificate  also  stated  that  the  returns  from  Wellsville 
were  in  an  imperfect  condition  when  first  received,  but  that  they 
were  again  returned  on  that  day  to  the  county  clerk,  "with  the 
certificate  filled  out,  with  the  names  of  the  judges  and  clerks 
attached  thereto."  After  that  recital  the  vote  of  the  county  was  cer- 
tified, as  appears  from  the  figures  above  quoted. 

That  canvass  of  the  county  returns  was  spread  upon  the  official 
recor3s~^oT  the  "couiity.  It  showed  oh  its  face  that  the  proposition 
to  remove  the  county  seat  had  fallen  short  of  the  required  two- 
thirds  majority,  and  had  therefore  failed  of  acloptioij. 

The  result  of  the  election  having  been  thus  certified,  the  county 
court  had  no  power  to  change,  that  result.  It  was  bound  to  give 
effect  to  the  vote  returned  by  the  election  officers  and  duly  authenti- 
cated. 

To  use  a  homely  but  very  significant  expression,  it  could  not 
go  "behind  the  returns." 

The  action  which  the  court  recorded  December  26,  1894,  under- 
took to  recanva&s,  or  (as  the  record  implies)  to  complete  the  can- 
vass of  the  results  of  that  election.  The  court  did  so  "by  refusing 
to  count  anv_  illegal  vote,  alleged  or~supposed~T6"TTave  been  cast 
~air'WensvitI^j)recinct,"  as  its  record  cTeclares.  '  ITaviho^'ThuT'tFrown 
olTflTie'  vote  of  one  precinct,  the  remaining  vote  gave  the  needed 
majority  to  the  proposition  for  removal,  which  the  court  then 
pronounced  adopted. 


454        STATE  EX  REL.  ELLIS  ET  AL.  V.  ELKIN  ET  AL.         §  I 

Even  if  the  proceedings  of  Dec.  26,  1894,  be  regarded  as  the 
first  canvass  of  the  county  vote,  it  appears  that  at  that  time  the 
Wellsville  vote  had  been  duly  certified.  That  vote  could  then  no  more 
be  discarded  by  the  county  court,  if  acting  as  a  canvassing  board, 
than  any  other  mere  canvassing  authority,  under  the  settled  law 
of  this  state.  INIayo  v.  Freeland,  (1847)  10  Mo.  630;  State  ex  rel. 
V.  Steers,  (1869)  44  Mo.  223;  Bowen  v.  Hixon,  (1870)  45  Mo. 
340;  State  ex  rel.  v.  Trigg,  (1880)  72  Mo.  365. 

At  this  point  we  touch  the  very  gist  of  the  case. 

To  change  the  result  announced  and  certified  by  the  election  offi- 
cers requires  the  exercise  of  judicial  power.  To  get  rid  of  the  vote 
of  Wellsville  precinct  in  the  matter  at  hand,  it  was  necessary  for  the 
county  court  to  use  a  power  such  as  is  ordinarily  exerted  in  the 
contest  of  an  election. 

The  act  of  the  court  was  not  a  mere  announcement  of  the  result^ 
as  certified  by  the  officers  to  whom  the  law  confided  the  duty  to 
certify.  It  was  judicial  action  upon  the .  result  so  certified.  It 
w^as  judrcial  action  which  substituted  a  different  result  from  that 
exhibited  by  the  certified  returns. 

We  regret  the  occasion  that  requires  us  to  say  that  the  use  of 
such  power  by  the  county  court,  in  che  circumstances  was  not 
authorized  by  law.  The  attempted  action  was  judicial  in  its  nature, 
and,  as  such,  beyond  the  jurisdiction  of  the  court  in  the  matter 
it  then  had  in  hand. 

It  is  /precisely  such  a  case  as  tlic  icrit  of  proliibitioii  is  designed 
to  leacJi^^ji  case  of  assumption  of  authority  to  pass  judgment  upon 
a  subject  not  committed  by  law  to  the  decision  of  the  tribunal 
so  assuming  to  act. 

Although  the  court  had  jurisdiction  of  the  subject  matter,  namely, 
the  power  to  hear  and  determine  the  general  class  of  proceedings 
to  which  that  in  question  belonged,  it  did  not  have  jurisdiction  to 
use  in  such  proceeding,  a  judicial  power  not  applicable  therein 
under   the   existing   law^ 

The  county  court  is  a  constitutional  court  of  record,  but  its 
jurisdiction  is  defined  to  be  "to  transact  all  county  and  such  other 
i)usiness  as  may  be  prescribed  by  law."     Cons.  1875,  art.  6,  §  36. 

The  law  governing  its  action  in  regard  to  the  removal  of  county 
seats  (R.  S.  1889,  sees.  3136  and  following)  neither  expressly  nor 
l)y  implication,  confers  any  authority  to  act  judicially  upon  the 
returns  of  the  election,  as  was  done  in  this  instance. 

'Ihc  county  court  did  not  have  the  power  to  set  aside  the  re- 
turns from  any  precinct ;  and.  in  assuming  that  power,  it  passed 
beyond  the  limits  of  the  authority  confided  in  it. 

Tti  many  states  of  the  union  provision  is  made  for  the  contest  of 
elect  ions  for  the  removal  of  county  seats.  But  in  Missouri  there 
arc   lu)   f\j)rcss   provisions   of  law    for   such   contests.      That    fact, 


§     I  I'KOllIlilTION,   IN   GENERAL.  455 

however,  cannol  justly  l)c  held  to  enlarge  the  jurisdiction  of  the 
county  court  in  reference  to  that  subject.  That  court,  we  repeat, 
cannot  act  judicially  upon  the  returns,  for  the  purpose  of  revising 
the  result  they  exhibit. 

We  conclude  that  the  writ,  of  prohibition  will  lie  to  stop  further 
action  by  the  court  under  the  judgment  of  Dec.  26,  1894. 

We  conside:r  that  this  decision  does  not  conflict  with  the  rulings 
which  declare  that  the  removal  of  the  county  seat  belongs  to 
the  administrative  or  business  department  of  county  afifairs.  We 
regard  the  question  here  raised  as  involving  principles  not  dis- 
cussed ifi  those  cases,  but  which  are  of  vital  importance  in  dealing 
v/ith  the  subject  of  elections.  The  case  is  not  one  of  mere  error 
of  judgment  in  the  matter  which  the  court  was  authorized  to  act 
upon.  Here  is  a  plain  assumption  of  power  not  appertaining 
to  the  court  in  the  proceeding  in  which  the  power  is  sought  to  be 
applied.     . 

In  the  exercise  of  the  superintending  control  given  to  the  supreme 
court  by  the  constitution  (const.  1875,  art.  6,  sec.  3),  it  is  the  plain 
duty  of  this  court,  zvhen  properly  invoked,  to  grant  a  ivrit  of  prohi- 
bition if  necessary  to  keep  the  county  court  from  passing  beyond  the 
bounds  of  its  proper  authority  into  a  field  of  judicial  action  not 
assigned  to  it,  but  plainly  forbidden  to  it  by  the  law. 

2.  _^g.ut.itjs  claimed  that  other  remedies  are  available  to  check 
the  defendants  from  proceeding  in  the  matter  of  removing  the 
county  seat.     That  may  be. 

The  court  will  decline  to  award  a  prohibition  where  a  party  can 
readily  obtain  a  desired  result  by  other  methods  of  procedure, 
as  was  held  in  Mastin  v.  Sloan,  (1889)  98  Mo.  252,  11  S.  W.  558. 

But  those  methods  must  be  reasonably  adequate,  prompt^ajtd 
efficient. 

The  granting  of  a  prohibitory  writ  is  discretionary  in  the  sense 
that  the  court  will  not  issue  it,  unless  the  facts  exhibited  appear 
to  justify  the  resort  to  such  a  remedy.  Where  other  convenient 
and  effective  means  of  reaching  the  same  result  are  open  to  the 
complaining  party,  the  court  may  decline  to  award  the  extraordinary 
remedy.  But  it  is  not  bound  to  decline. because  there  may  be  some 
concurrent  remedy.  Whether  other  modes  of  relief  are  equally 
"effecTrven[s~a  question  to  be  determined  in  each  particular  exigency. 

And  where  a  state  of  facts  is  presented,  calling  for  the  use  of 
the  writ  according  to  the  principles  and  usages  of  law,  and  where 
no  other  remedy  is  available,  its  allowance  is  not  discretionary,  but 
a  matter  of  right  under  our  constitution.     (Art.  2,  §   10.) 

In  the  present  instance  we  have  no  hesitation  in  ruling  that  the 
resort  to  this  writ  is  appropriate  and  lawful. 

3.  But  it  is  then  said  that  the  matter  has  gone  too^far^Jo  be 
reached  by  a  wnt  of  prohibition. 


456  STATE    EX    REL.    ELLIS    ET    AL.    V.    ELKIN    ET    AL.  §    1 

The  action  of  the  county  court  in  December  was  in  effect,  a 
judgment  upon  the  election;  a  judgment  beyond  the  jurisdiction 
of  the  court  that  entered  it  of  record. 

So  loiiij;,  at  least  as  any  part  of  it  remains  inicxccutcd,  further 
proceedings  upon  it  can  properly  be  prohibited. 

This  point  has  been  recently  so  fully  discussed  that  a  repetition 
of  the  argument  upon  it  is  deemed  unnecessary.  (State  ex  rcl.  v. 
Rombauer,  (1891),  105  Mo.  103,  16  S.  W.  695.) 

A  judgment  rendered  without  jurisdiction  certainly  cannot  be 
infused  with  life  by  a  mere  attempt  to  properly  execute  it. 

The  defendants  were  invoked  to  vacate  the  judgment  as  being 
unauthorized,  some  time  before  the  date  set  for  the  commissioners 
to  act  in  the  matter  of  removal.  The  prohibitory  rule  in  this  case 
was  served  before  that  date ;  and  final  action  by  the  county  court 
would  still  be  needed  (under  section  3145)  to  complete  the  removal, 
even  had  the  requisite  vote  been  given. 

As  the  case  stands,  the  judgment  of  removal  cannot  lawfully 
be    carried    out. 

4.  A  suggestion  has  been  made,  looking  toward  action  by  this 
court  in  reference  to  steps  taken  by  defendants  since  the  prelimi- 
nary rule  in  this  case.  We  do  not  deem  it  needful  at  this  time  to 
go  into  that  question. 

We  are  dealing  with  sworn  county  officers,  whom  we  have  no 
ground  to  suppose  have  the  slightest  intention  to  disregard  the  law. 
The  proceedings,  which  we  have  found  it  our  duty  to  disapprove, 
were  no  doubt,  taken  by  the  county  court  under  a  mistaken  appre- 
hension of  the  extent  of  its  authority  in  the  premises.  We  have  no 
reason  to  believe  that  defendants  will  not  promptly  conform  their 
official  action  to  the  ruling  we  have  made.  So  we  reserve  any  action 
on  the  suggestion  referred  to. 

It  follows  from  what  has  been  said  that  the  motion  for  judg- 
ment is  sustained,  and  the  rule  in  ])rohibition  is  made  absolute, 
I'race,   C.    T..  aufl   ^TacFarlane  and   RrjiuxsoN,  JJ.,   concur. 

OPINION    ON    MOTIONS    AFTER    JUDGMENT. 

Per  curiam  (Brace.  C.  J.,  and  r'ARCLAv,  McFarlane  and  Rob- 
inson, JJ.). — Two  points  arc  ])rescntcd  by  motions  following  the 
peremptory  writ.  Tn  order  that  there  may  be  no  possibility  of  any 
misunderstanding  of  the  effect  of  our  rulings  thereon,  we  file  this 
mcmr)randum. 

I.  The  motion  to  f|uash  the  return  to  the  ])ercmptory  writ  is 
sustained  for  tlic  following  reasons: 

The  only  return  that  can  properly  be  made  to  a  peremptory  writ 
of  proliibition  is  a  return  of  compliance  with  it.  ilcrc,  the  writ  coni- 
^}VM^<]|■^   ill-'   ''<-fciid,'m1s  to  conform   their  olVnial   action,  as  judges 


§     I  PROHIBITION,   IN   GENERAL.  457 

of  the  county  court,  to  the  judgment  so  rendered.  Tliat  judgment  de- 
clared that  the  county  seat  of  Montgomery  county  had  not  lawfully 
been  removed  from  Danville,  and  that  it  could  not  be  so  removed 
under  the  official  returns  of  the  last  election  on  that  subject. 

It  now  appears  that  the  defendants,  having  meanwhile  removed 
the  county  records  from  Danville  to  Montgomery  City  (as  though 
the  county  seat  had  been  lawfully  transferred  to  the  latter  city) 
have  held  a  session  of  the  county  court  at  Montgomery  City,  since 
the  final  judgment  of  this  court  and  since  the  service  of  the  per- 
emptory writ  upon  them.  In  their  return  to  that  writ  defendants 
significantly  omit  to  state  that  they  have  conformed  their  official 
action  to  the  judgment  of  this  court,  as  the  writ  commands  them 
to  do. 

Hence  their  return  to  the  peremptory  writ  is  insufficient.  It  is  ac- 
cordingly quashed.  Defendants  are  required  to  make  a  further 
return  to  said  writ  within  ten  days  from  this  date. 

2.  On  the  motion  for  attachment  for  contempt  it  is  ordered  that 
such  attachment  issue,  returnable  on  the  first  day  of  the  next  term 
of  this  court ;  but  in  the  meantime  if  the  defendants  shall  obey 
in  all  respects,  in  its  letter  and  obvious  intent,  che  peremptory  writ, 
and  make  full  return  thereof  (as  required  by  the  order  for  a 
further  return  above  made),  the  court  will  duly  consider  that 
fact  at  the  opening  of  the  next  term,  in  determining  what  further 
orders  be  made  in  the  matter  of  said  contempt. 

We  trust  that  it  may  not  be  necessary  to  proceed  to  apply  any 
drastic  measures  in  this  case  to  secure  obedience  to  the  orders 
and  judgment  of  this  court,  and  that  defendants  will  render  a 
prompt  deference  to  the  law  which  is  binding  and  obligatory  as 
well  upon  judges  as  upon  all  other  citizens  of  the  state. 


JAMES  S.  THOMAS  v.  ANDREW  W.  MEAD,  et  al. 

1865.    Supreme  Court  of  Missouri.    36  Mo.  232. 

Holmes,  J. —  *  *  *  That  this  court  has  original  jurisdic- 
tion to  issue  the  writ  of  prohibition  can  scarcely  be  denied.  The 
supreme  court  is  investec[  by  the  constitution  with  a  general  super- 
Intendmg  controT  over  all  inferior  courts  of  law  in  this  state,  and 
with  original  jurisdiction  and  power  "to  issue  writs  of  habeas  corpus, 
mandamus,  quo  warranto,  certiorari,  and  all  other  original  remedial 
wTits,~and  to  hear  and  determine  the  same.  (Const,  art.  VI.,  §  3.) 
In  respect  of  preeminence  and  power  under  the  constitution,  it  holds 
a  position  analogous  to  that  of  the  court  of  king's  bench  in  England, 
which,  says  Blackstone,  "is  a  court  of  very  high  and  transcendent 
iurisdiction,"  and  is  "the  supreme  court  of  the  common  law  in  the 


458  STATE    V.    YOUNG.  §     I 

kingdom."  Still  more,  this  court  is  the  final  court  of  errors,  and 
appeals  in  this  state.  Like  the  court  of  king's  bench  it  will  "keep 
all  inferior  jurisdictions  within  the  bounds  of  their  authority,  and 
may  either  remove  their  proceedings  to  be  determined  here,  or 
prohibit  their  progress  below."  (3  Bl.  Com.  41.)  A  prohibition  is 
an  original  remedial  writ,  and  is  as  old  as  the  common  law.  It 
was  the  king's  prerogative  writ,  provided  by  the  common  law  as 
a  remedy  for  "encroachment  of  jurisdiction."  (3  Blacks.  Com.  112.) 
It  is  as  it  were,  the  counterpart  of  niaiidamus,  which  is  in  its  nature 
affirmative,  commanding  certain  things  to  be  done ;  prohibition  is 
negative  in  character  forbidding  to  be  done  certain  things  that 
ought  not  to  be  done :  and  though  not  expressly  enumerated  in  the 
constitution,  it  clearly  comes  within  the  words  "other  original  rem- 
edial writs.".  It  is  directed  to  the  judge  and  parties  to  a  suit  in 
any  inferior  court,  and  commands  them  to  cease  from  the  prosecution 
thereof,  upon  a  suggestion  that  either  the  cause  originally,  or  some 
collateral  matter  arising  therein,  does  not  belong  to  that  jurisdiction, 
or  that  in  handling  matters  clearly  within  their  jurisdiction,  they 
transgress  the  bounds  prescribed  by  the  law  of  the  land.  (3  Bl.  Com. 
112.)  Says  Judge  Coke  from  the  king's  bench:  "We,  here  in  this 
court  may  prohibit  any  court  whatever,  if  they  transgress  and  ex- 
ceed their  jurisdiction.  And  there  is  not  any  court  in  Westminster 
Hall  but  may  be  by  us  here  prohibited,  if  they  do  exceed  their 
jurisdiction,  and  all  this  is  clear  and  without  any  question."  Warner 
V.  Sucterman,  3  Bulst.  119.)  One  great  object. of  the  writ  is..tg^ 
prevent  conflicts  between  dififerent  courts,_and  a  determination  of 
the  law  in  dififerent  ways  by  different  courts ;  "an  impropriety," 
says  Blackstone,  "which  no  wise  government  can  or  ought  to  endure, 
and  which  is  therefore  a  ground  of  prohibition."  (3  Bl.  §113.)  It 
is  granted  at  the  instance  of  any  one  of  the  parties  to  the  suit  below, 
])laintifif  or  defendant,  and  even  by  a  stranger  (2  Inst.  602;  6  Com. 
i^ig.  105)  ;  and  because  they  deal  in  that  which  does  not  appertain 
to  the  jurisdiction  of  the  court  (2  Inst  607.)  Indeed,  the  authori- 
ties are  endless,  and  place  the  subject  beyond  all  dispute.  (2  Sel. 
308;  6  Com.  Dig.  105 ;  6  Bac.  Ab.  579,  600 ;  Full  v.  Iluchins,  Cowp. 
424;  Buggin  V.  Bennett,  4  Burr.  2035.) 


STATE  EX  REL.  ATTORNEY  GENERAL  v.  YOUNG  et  al. 

iSSi.  Sui'UKME  Court  of  Minn'esota.  29  Minn.  474,  9  N.  W.  737. 

GiMir.i.AN,  C.  J. —  *  *  *  The  writ  of  prohibition  issues 
tisually  tf)  courts  to  kcc])  them  within  the  limits  of  their  jurisdiction. 
F'lit  it  may  also  issue  to  an  officer  to  prevent  tlic  unlawful  exercise 
of  judicial  or  quasi-judicial  power;  and,  the  ollur  irasons  for 
IT  fxisting.  we   sec  none   why  it  should   not    issue   to  a   ])erson,  or 


§    I  PROHIBITION,  IN   GENERAL.  459 

body  of  persons,  not  being  in  law  a  court,  nor  strictly  ofificcrs ;  as. 
if  the  legislature  should  assume  in  an  unconstitutional  manner  to 
create  a  court  of  justice,  and  the  person  or  persons  appointed 
as  its  judge  or  judges  should  enter  upon  the  exercise  of  the  judicial 
functions  thus  attempted  to  be  conferred,  the  same  reasons  might 
exist  for  arresting  their  actions  as  exist  in  the  case  of  a  court 
exceeding  its  jurisdiction.  The  exercise  of  unauthorized  judicial 
or  quasi-judicial  power  is  regarded  as  a  contempt  of  the  sovereign 
•which  may  result  in  injury  to  the  state  or  citizens. 

Three  things  are  essential  to  justify  the  writ:     Eii:sJ;^.that  the 
court,  officer  or  person  is  about  to  exercise  judicial  or  quasi-judicial^' 
power;   second,   that   the   exercise   of   such   power   by   such   court, 
dflfrcer  or  either  person  is  unauthorized  by  law ;  third,  that  it  will  re- 
sult in  injury  for  which  there  is  no  other  adequate  remedy.  *     *     *'" 

See  also  People  v.  Circuit  Court,  173  111.  272;  Connecticut  River  R.  Co. 
V.  County  Com'rs,i27  Mass.  50;  State  v.  Burckhartt,  87  Mo.  533,  537;  Thom- 
son V.  Tracy,  60  N.  Y.  31;  State  v.  Kirkland,  41  S.  Car.  29;  Spring  Valley, 
etc.,  Co.  V.  San  Francisco,  52  Cal.  iii;  Speed  v.  Detroit,  98  Mich.  360; 
Fleming  v.  Commissioners,  31  W.  Va.  608;  Planters'  Ins.  Co.  v.  Cramer, 
47  Miss.  200;  State  v.  Towns,  153  Mo.  91;  Reid,  Ex  parte,  50  Ala.  439; 
Shumaker,  In  re,  90  Wis.  488. 

A  careful  distinction  must  be  made  between  injunction  and  prohibition. 
While  these  two  remedies  in  many  respects,  especially  in  their  negative 
character,  resemble  each  other  very  closely,  yet  they  differ  essentially  in 
their  substance  as  well  as  form.  Where  an  injunction  issues  to  restrain 
proceedings  at  law  it  acts  upon  the  parties  litigant  only;  it  never  denies 
the  jurisdiction  of  the  court  nor  is  directed  to  the  court.  Prohibtion,  on 
the  contrary,  ignores  the  parties  completely  and,  denying  the  jurisdiction, 
is  addressed  to  the  court  itself.  Injunction  may  issue  from  a  court  of  co- 
ordinate jurisdiction ;  prohibition,  never,  for  it  is  based  essentially  upon 
the   supervisory  power  possessed   by   superior   over   inferior   tribunals. 

In  some  respects,  prohibition  may  be  termed  the  counterpart  of  Mandamus 
in  that  it  is  negative  in  its  character  while  Mandamus  is  essentially  positive 
or  affirmative.  Prohibition,  however,  never  is  extended  to  purely  minis- 
terial acts.     Maurer  v.   Mitchell,  53   Cal.   289. 


2.     A  common  law  writ. 

CONNECTICUT  RIVER  RAILROAD  COMPANY  v.  COUNTY 
COMMISSIONERS  OF  FRANKLIN. 

1879.     Supreme  Judicial  Court  of  Massachusetts.     127  Mass. 

50- 

(The  petition  was  directed  to  respondents  to  cause _them  to 
refrain  from  assessing  damages  for  land  taken  under  statute  by  the 
manager  of  a  railroad,  ,owned  by  the  state,  for  a  passenger  station 
and  providing  for. compensation  out  of  the  earnings  of  the  company. 
The  contention  was  that  the  statute  was  unconstitutional.) 

Gray,  C.  J. —  (After  stating  tlie  facts.)     *     *     * 


1/ 


460       CONNECTICUT   RIVER  R.   R.    CO.   V.    COUNTY   COMMISSIONERS.       j     I 

Two  questions  are  presented  by  the  case,  and  have  been  argued  by 
counsel :     First.    Whether  the  statute  of  1878,  c.  277,  is  unconstitu- 
tional, for  want  of  a  sufficient  provision  for  the  payment  of  com- 
pensation for  the  land  taken?    jSecond;  Whetherjhe  writ  of  prohi,bir|' 
tion  is  a  suitable  remedy?      ■ '    *     * 

(So  much  of  the  opinion  as  relates  to  the  first  point  is  omitted.) 

*  *  *  We  have  no  information  of  any  new  taking  of  the 
land  since  the  passage  of  the  statute  of  1879,  and  the  remaining 
question  is  whether,  upon  the  facts  appearing  on  the  record,  a  writ 
of  prohibition  will  issue.     *     *     * 

A  writ  of  prohibition  issuing  from  the  highest  court  of  common 
iaw~ls  the  appropriate  remedy  to  restrain  a  tribunal  of  peculiar, 
limited  or  inferior  jurisdiction  from  taking  judicial  cognizance  of  a 
case  not  within  its  jurisdiction.  3  Bl.  Com.  112.  Washburn  v, 
Phillips,  2  Met.  296.  The  power  of  issuing  the  writ  was  habitually 
exercised  by  the  principal  courts  of  the  common  law  of  England, 
and  by  the  Superior  Court  of  Judicature  of  Massachusetts  under 
the  Province  Charter.  The  earlier  acts  of  the  Province  establishing 
the  Superior  Court  of  Judicature  was  disallowed  by  the  King  in 
Council.  Prov.  Stats.  1692-3  (4  W.  &  M.)  c.  33;  1697  (9  William 
in.)  c.  9;  I  Prov.  Laws  (state  ed.)  'j2^  73,  284.  285;  Anc.  Ch.  217, 
221.  But  the  act  of  1699-1700  (11  William  111,  c.  3.)  under  which 
that  court  existed  until  the  American  Revolution,  conferred  upon  it 
a  very  extensive  jurisdiction  of  pleas  of  the  crown  and  civil  actions, 
''and  generally  of  all  other  matters,  as  fully  and  amply  to  all  other 
intents  and  purposes  whatsoever  as  the  court  of  King's  Bench,  Com- 
mon Pleas  and  Exchequer  within  his  majesty's  kingdom  of  England 
have  or  ought  to  have."  I  Prov.  laws,  370,  371  ;  Anc.  Charter  330. 
Under  that  act,  the  Superior  Court  of  Judicature  frequently  issued 
writs  of  prohibition  to  the  court  of  Vice  Admiralty.  See,  for  ex- 
amples of  this,  Thomas  v.  Calley,  rec.  1716,  fol.  143;  Hutchinson  v. 
Wybourne,  rec.  1716,  fol  169;  Plarminy  v.  Wyre,  rec.  1717,  fol.  177; 
Manderson  v.  Hughs,  rec.  1718,  fol  259;  Tilton's  case,  rec.  1720,  fol 
338;  Dummer's  Defence  of  the  New  England  Charters  (1721) 
63,  64;  Scollay  V.  Dunn  (1763)  Quincy  74. 

By  early  statutes  of  the  commonwealth  it  was  provided  this  court 
should  have  cognizance  of  all  such  matters  as  by  the  laws  of  the 
Province  were  made  cognizable  by  the  Superior  Court  of  Judicature, 
unless  where  the  constitution  had  provided  otherwise ;  and  should 
have  power  to  issue  all  writs  of  prohibition  and  mandamus  according 
to  the  law  of  the  land,  to  all  courts  of  inferior  judiciary  powers. 
Sts.  1780,  c.  17;  1782,  c.  9  §  2.  Tii^  each  snl)S(M[ncnt  revision  of  the 
statutes  it  has  been  provided  that  thTs  omrt  "sliall  have  the  general 
superintendence  of  all  courts  of  inferior  jurisdiction,  to  prevent  and 
correct  error  and  abuses  therein,  where  no  other  remedy  is  expressly 
I)rovidcfl  by  law  ;"  and  "shall  have  power  to  issue  writs  of  error. 


I     I  PR0HI15ITI0N,   IN    GENERAL.  461 

certiorari,  nianchuiuis,  prohibition,  and  quo  warranto^  and  all  other 
writs  and  processes  to  courts  of  inferior  jurisdiction,  to  corporatiofis 
ancf  individuals,  that  shall  he  necessary  to  the  furtherance  of  justice 
and  the  regular  execution  of  the  laws."  Rev.  Sts.,  c.  8i  §§  4,  5. 
Gen.  Sts.  c.  112,  §  3.  This  court,  therefore,  is  vested  with  ample 
power  to  issue  writs  of  prohibition  in  proper  cases,  where  there 
is  no  other  adequate  remedy,  although,  since  the  jurisdiction  of  cases 
in  admiralty  and  of  issuing  writs  of  prohibition  in  such  cases 
has  been  transferred  to  the  courts  of  the  United  States  by  the 
Federal  Constitution  and  statutes,  and  this  court  has  been  vested 
with  the  jurisdiction  of  divorce  cases,  and  of  probate  appeals  under 
the  constitution  and  laws  of  the  commonwealth,  these  writs  have 
become  less  common,  and  but  few  instances  of  applications  for  them 
iire  to  be  found  in  our  reports.  Washburn  v.  Phillips,  above  cited  ; 
Gilbert  v.  Hebard,  8  Met.  129;  Vermont  &  Massachusetts  Railroad 
v.  County  Commissioners,  10  Gush.  12;  Day  v.  Aldermen  of  Spring- 
field, 102  Mass.  310. 

In  the  present  case,  if  the  proceedings  for  the  assessment  of 
damages  had  gone  on  to  final  judgment,  they  might  indeed  have  been 
quashed  by  writ  of  certiorari.  Charlestown  Branch  R.  R.  v.  County 
Commissioners,  7  Met.  78.  Charles  River  Branch  R.  R.  v.  County 
Commissioners,  7  Gray  389.  Farmington  River  Power  Company  v. 
County  Commissioners,  112  Mass.  206.  r)Ut  the  fact  that  the 
remedy  by  petition  for  writ  of  certiorari  will  be  open  to  the  land 
owner  after  final  judgment  affords  no  reason  why  the  court  shoulid 
re'fuse'^"  "writ  of  prohibition,  and  thereby  put  the  petitioner  to  the 
trouble,  expense  and  delay  of  a  trial  before  a  tribunal  which  has 
no  jurisdiction  of  the  case,  and  to  whose  jurisdiction  the  petitioner 
has  objected  at  the  outset  of  the  proceedings.  Gould  v.  Capper, 
5  East  345.  367.  371.  Burdey  v.  Veley,  12  A.  &  E.  233,  263,  265, 
313.  314.  \''ermont  &  Massachusetts  Railroad  v.  Co.  Com'rs,  above 
cited.  The  relief  sought  by  bill  in  equity  in  Talbot  v.  Hudson,  16 
Gray,  417,  was  to  restrain  the  pulling  down  of  a  milldam  by  executive 
officers,  not  to  prevent  a  judicial  hearing,  and  determination  by  a 
tribunal   transgressing   its   jurisdiction. 

The  fact  that  an  agent  of  the  commonwealth  is  the  adverse  party 
in  the  proceedings  before  the  county  commissioners  affords  no 
reason  for  refusing  the  writ.  A  writ  of  prohibition,  like  a  writ  of 
mandamus  or  of  certiorari  is  properly  sued  out  in  the  name  of 
the  crown  or  of  the  state ;  the  only  necessary  defendant  is  the 
tribunal  whose  proceedings  are  sought  to  be  restrained,  controlled 
or  quashed ;  and  there  is  no  class  of  cases  in  which  the  authority 
to  Jssue  writs  of  prohibition  is  better  established  than  in  those 
of  courts  martial,  ecclesiastical  courts,  or  inferior  courts  of  common 
J^^^Yj^^^'-"'''"'"?'  ^'^^  ^'^^^  cognizance  in  excess  of  their  jurisdiction,  of 
criminal  prosecutions.  Washburn  v.  Phillips,  above  cited.  Grant 
V.  Gould,  2   H.   Bl.  69.     Com.  Dig.   Prohibition.   F.  6.     Searle  v. 


462  ADAMS  V.    WESTBROOK.  §    I 

Williams,  Hob.  288.    Queen  v.  Herford,  3  El.  &  El.  115.    Zylstra  v. 
Corporation  of  Charlestown  i  Bay  382. 
Writ  of  prohibition  to  issue. 

See  also  Rickey  v.  Superior  Court,  59  Cal.  661 ;  Singer  Mfg.  Co.  v. 
Spratt,  20  Fla.  122;  State  v.  Judge,  etc.,  10  Rob.  (La.)  169;  Arnold  v. 
Shields,  5  Dana  (Ky.)  18;  Home  Ins.  Co.  v.  Flint,  13  Minn.  244;  People 
V.   District  Court,  26  Colo.  386;    State  v.   Rombauer,   104   Mo.   619. 

In  the  latter  case  Barclay,  J.,  after  reviewing  the  history  of  prohibition 
and  the  jurisdiction  of  the  Supreme  Court,  held  that  the  order  to  show 
cause  may  be  made  bj'  a  judge  of  the  court  in  vacation. 


3.     Not  a  writ  of  right. 

PEOPLE  EX  REL.  ADAMS  v.  WESTBROOK  et  al. 
1882.     Court  of  Appeals  of  New  York.     89  N.  Y.  152. 

(Relator  held  certain  equitable  claims  against  one  Fox.  Pending 
an  action  brought  thereon.  Fox  died  and  the  judgment  rendered 
in  relator's  favor  was  set  aside.  The  surrogate  ordered  a  sale  of 
the  estate  of  Fox  , and  published  "fhe  usual  notice  to  creditors. 
Relator  insists  that  the  surrogate  has  no  jurisdiction  over  claims 
subject  to  an  action  pending  in  the  Supreme  Court.  Order  denying 
the  writ  made  at  general  term  of  the  Supreme  Court.  Relator 
appeals.) 

Rapallo,  J. —  *  *  *  We  do  not  deem  it  proper  to  pass  now 
upon  the  claims  of  equitable  relief  set  up  by  the  relator  and  argued 
in  the  elaborate  points  which  he  has  submitted,  nor  upon  the  question 
of  the  jurisdiction  of  the  surrogate  in  the  matter  for  the  reason 
that  we  are  of  the  opinion  that  the  decision  of  the  supreme  court 
denying  the  writ  of  prohibition  is  not  reviewable  in  this  court.  The 
writ  of  prohibition  is  an  extraordinary  remedy  and  should  be  issued 
only  in  cases  of  extreme  necessity,  and  not  for  grievances  which 
may  be  redressed  by  ordinary  proceedings  at  law  or  in  equity,  or  by 
appeal,  and  it  is  not  demandablc  os  matter  of  right,  but  of  sound 
judicial  discretion^  to  be.. granted  or  withheld,  according  to  the  cir- 
cumstances of  each  particular  case.  (Kinloch  v.  Harvey,  Harp. 
CS.  Car.")~5oS. )  I  Ins  fjucstion  was  considered  at  an  early  day  by 
the  English  courts,  and  was  at  one  time  a  subject  of  controversy. 
In  the  reign  of  Charles  H,  case  of  the  Lord  Admiral  v.  Linstead, 
(  Sindcrfin  178  C15  Car.  2) ),  it  was  said  bv  the  chief  justice  that  pro- 
hibitions are  discretionary ;  but  this  was  denied  by  Keeling,  J., 
and  his  view  prevailed  during  that  reporter's  period.  In  Sergeant 
Morton's  case  (Sid.  65  (13  Car.  2.))  it  is  stated  to  have  been  the 
rpinion  of  the  whole  court  that  prohibitions  were  grantablc  as  a  mat- 
tor  of  right,  and  did  not  rest  in  discretion  as  was  said  in  Hob.  67, 


§    I  I'KOlIiniTION^   IN   GENERAL.  463 

66b;  and  in  Woodward  v.  JJonithan,  (T.  Raym.  2),  in  the  same  reign 
(12  Car.  2)  it  was  agreed  that  the  granting  of  the  writ  was  not 
discretionary ;  but  that  such  writs  were  grantable  ex  dchito  justitac. 
It  is  worthy  of  note  that  all  these  cases  arose  during  the  judicial 
strife  which  was  carried  on  in  the  sixteenth  and  seventeenth  centu- 
ries between  the  courts  of  king's  bench  and  the  courts  of  admiralty, 
and  they  are  all  cases  involved  in  that  contest,  the  severity  of  which 
is  described  in  Benedict's  Admiralty,  Ch.  6,  §  74  et  seq.,  where 
it  is  said  that  matters  raged  so  high  that  a  war  was  declared  between 
the  two  courts  and  prohibitions  were  hurled  from  Westminster  Hall 
without  much  order.  In  1648  the  republican  Parliament  of  Eng- 
land, at  the  instance  of  the  friends  of  commerce  and  trade  took 
sides  with  the  admiralty  and  adopted  the  ordinance  of  1648  (Sco- 
bell's  collection,  p.  147,  Ch.  112)  entitled  "The  Jurisdiction  of  the 
Court  of  Admiralty  Settled."  Under  this  ordinance  the  admiralty 
was  administered  by  Dr.  Godolphin  until  the  restoration,  in  the  year 
1660,  when  it  ceased  to  be  in  force,  and  the  war  of  prohibition 
was  resumed  by  the  common  law  judges.  It  was  at  this  period 
that  the  decisions  to  which  I  have  referred,  holding  the  writ  of 
prohibition  to  be  a  writ  of  right  and  not  discretion,  were  rendered 
by  the  King's  Bench.  But  at  a  later  date  in  II  William  the  3d, 
in  the  case  of  Bishop  of  St.  David  v.  Lucy,  reported  in  i  Ld.  Raym. 
539,  a  writ  of  prohibition  was  denied  by  the  court  of  King's  Bench, 
and  it  appears  by  a  note  at  page  545  that  after  this  denial  the 
bishop  petitioned  the  lord  chancellor  for  a  w^rit  of  error  upon  this 
denial,  and  he,  having  some  doubt,  referred  it  to  the  attorney  general, 
who  certified  his  opinion  to  be  that  a  writ  of  error  w^ould  lie. 
Thereupon  the  writ  of  error  was  granted,  and  the  whole  record 
brought  by  the  chief  justice  (Holt)  into  Parliament,  and  afterward, 
on  hearing  his  opinion,  the  lords  were  of  opinion  that  a  writ  of  error 
would  not  lie  in  the  case.  The  decision  is  also  referred  to  in 
Salk.  136,  and  I  find  nothing  later  tcr  the  contrary. 

In  this  state  the  principle  of  that  decision  has  been  adopted  in 
the  supreme  court.  E.v  parte  Braudlacht,  (2  Hill  367),  where 
Cowen,  J.,  says :  "W.ejTave_a_discretJon  tq^rant  ordeny  the  writ," 
referring  to  State  v.  Hudnall,  (2  Koit  &  AIcC.  419,  423),  and  the 
same  view  is  expressed  by  elementary  writers.  (High  on  Ex. 
Remedies,  §  765;  2  Crary's  Special  Proceedings,  87.) 

It  b^ing  discretionary  \yith  the  supreme  court  whether  to  grant 
or  deny  the  writ,  its  order  refusing  to  grant   it  is  not  appealable 
to  tTiis"~cOtift. 
"The  appeal  must  l)e  dismissed  with  costs  against  che  relator. 

Appeal  dismissed. 

In  accord. — State  v.  Judge,  etc.,  4  Rob.  (La.)  48;  Smith.  Ex  parte  23 
Ala.  94;  State  v.  Seaj',  23  Mo.  App.  623;  Gray  v.  Court,  etc.,  3  McCord 
(S.  Car.),  17s;   Singer  Mfg.  Co.  v.   Spratt.  20  Fla.   122. 

Contra,    Havemeyer   v.    Superior    Court,    84    Cal.    327. 


464  lAROUHARSON   V.    MORGAN.  §    I 

FAROUHARSON  v.  MORGAN. 

1894.     Queen's  Bench  Division  of  the  High  Court  of  Justice. 
63  Law  Journal  N.  S.  474;  i  Q.  B.  552. 

The  defendant  was  tenant  to  the  plaintiff,  of  a  farm  under  a  lease 
whTcTi  provided  for  certain  allowances  arid  comperis'atidri^td  Be 
made,  at  the  expiration  of  the  tenancy,  to  ^tlie  outcjoinG^  tenant  as 
to  'various  matters  which  are  not  the  subjects  of  allowance'"or 
compensation  under  the  Ao^ricultural  Holdings  Act,  (England) 
1883,  and  it  also  provided  that  sections  7  to  28,  both  inclusive  of 
that  act,  relating  to  procedure,  should  apply  as  well  to  any  claim 
of  the  outgoing  tenant  for  allowance  or  compensation  to  be  made 
imder  the  provisions  of  the  lease  as  to  any  claim  under  the  act. 
Subsequent  to  the  expiration  of  the  tenancy,  an  award  was  made 
in  an  arbitration,  held  under  the  provisions  of  the  act  of  1883, 
wdiich  showed  on  the  face  of  it  the  matters  in  respect  of  which 
the  sums  thereby  awarded  were  given,  and  also  that  it  dealt  with 
matters  which  w^ere  also  the  subject  of  allow^ance  and  compensation 
under  the  act  as  with  matters  outside  the  act.  On  an  application 
by  the  tenant,  the  county  court  judge  made  an  order  under  section 
24  of  the  act  for  the  enforcement  of  the  award.  The  landlord 
moved  for  a  writ  of  prohibition  against  the  county  court  enforcing 
the  award  or  proceeding  further  with  the  matter.     *     *     * 

Lopes,  L.  J. — This  case  raises  the  much  vexed  question  whether 
the  grant  of  prohibition  is  discretionary  of  whether  it  is  demandable 
of  right.  It  seems  to  me  that  there  has  aliyaya  been  recognized  a 
distinction  between  what  I  will  call  a  latent  want  of  jurisdiction — 
e.  g.,  something  becoming  manifest  in  the  course  of  the  proceedings ; 
and  what  I  will  call  a  patent  want  of  jurisdiction — c.  g.,  a  want  of 
jurisdiction  apparent  on  tlTe  face  of  the  proceedings.  Whilst  in 
cases  of  latent  want  of  jurisdiction  there  has  always  been  a  great 
conflict  of  judicial  opinion  as  to  whether  the  grant  of  the  writ 
was  discretionary  or  not.  the  authorities  seem  unanimous  in  deciding 
that  where  the  want  of  jurisdiction  is  patent,  the  grant  of  the  writ 
of  prohibition  is  of  course.  Lord  Mansfield  in  Buggin  v.  Bennet, 
(4  lUirr.  p.  2037)  held  that  the  court  was  not  bound  to  grant  a 
prohibition  to  a  party  who  had  ac(|uiesced  in  the  proceedings  of  the 
court  below,  excei)t  where  the  absence  of  jurisdiction  was  apparent 
on  the  face  of  the  ])roceedings.  In  Hodenham  v.  Ricketts,  (6  Nev. 
&  M.  170,  537;  5  Law  Jr.  Rep.  K.  ?>.  102)  Lord  Denham  laid  down 
the  rule  in  the  same  terms  as  Lord  Mansfield ;  and  about  the  same 
time  the  same  rule  was  adopted  in  a  considered  judgment  of  the 
Queen's  T'cnch  in  Yates  v.  Palmer  (6  D.  &  L.  283.) 

In  the  elaborate  o])inion  of  the  judges  delivered  by  Mr.  Justice 
Willes  to  the  House  of  Lords,  in  tlic  .Mayor  of  London  v.  Cox,  (36 


§    I  PKOlIIIilTION,  IN   GENERAL.  465 

Law  Jr.  Rep.  Exch.  225)  it  is  said  "that  upon  an  application  being 
made  in  proper  time  upon  sufficient  materials  by  a  party  who  has  not 
by  misconduct  or  laches  lost  his  right,  its  grant  or  refusal  is  not  in 
the  discretion  of  the  court ;"  and  at  page  283  of  the  same  case 
it  is  said  "where  the  defect  is  not  apparent  and  depends  upon  some 
fact  in  the  knowledge  of  the  applicant  which  he  had  an  opportunity 
of  bringing  forward  in  the  court  below,  and  he  has  thought  proper, 
without  excuse,  to  allow  that  court  to  proceed  to  Judgment  without 
setting  up  the  objection,  and  without  moving  for  a  prohibition  in 
the  first  instance,  although  it  should  seem  that  the  jurisdiction 
to  grant  a  prohibition  in  respect  of  the  right  of  the  crown  is  not 
taken  away,  for  mere  acquiescence  does  not  give  jurisdiction. — 
Knowles  v.  Holden,  (24  Law  Jr.  Rep.  Exch.  223),  yet  considering 
the  conduct  of  the  applicant,  the  importance  of  making  an  end  of  lit- 
igation, and  that  the  writ,  though  of  right,  is  not  of  course,  the 
court  would  decline  to  intercede,  except  perhaps  upon  an  irresistible 
case,  and  an  excuse  for  the  delay,  such  as  disability,  malpractice 
or  matter  newly  come  to  the  knowledge  of  the  applicant." 

It  was  held  in  that  case  that  the  writ  was  not  of  course,  inas- 
much as  there  might  be  circumstances  which  would  justify  the 
court  in  refusing  it,  such  as  undue  delay,  insufficient  materials, 
or  misconduct  or  laches  by  the  party  applying  for  it..  But  there 
is  nothing  in  the  case  contravening  the  rule  which  I  have  mentioned, 
where  the  absence  of  jurisdiction  is  apparent  on  the  face  of  the 
proceedings — in  fact,  there  is  an  express  exception  of  such  cases. 
In  1888,  in  the  case  of  Broad  v.  Perkins,  (57  Law  Jr.  Rep.  0.  B. 
638;  Law  Rep.  21  O.  E.  D.  533)  the  question  whether  in  the  cir- 
cumstances of  that  case  the  court  had  any  jurisdiction  to  refuse  a 
writ  of  prohibition  was  directed  to  be  argued  before  the  full  court 
of  appeals,  and  the  Alaster  of  the  Rolls  (Lord  Esher),  delivering  the 
judgment  of  the  full  court,  repeated  the  opinion  of  Mr.  Justice  Willes 
in  the  Mayor  of  London  v.  Cox,  supra,  which  I  have  above  cited. 

The  result  of  the  authorities  appears  to  me  to  be  this :  ih2ii Jhe 
^rantin^^f  a^.prohibitionis  not  an^  qbsglufe  right  in  cvery^cas£^ 
wK'ere  an  inferior  tribunal  exceeds  its  jurisdiction,  and  that  zvJiere 
thntVTcucc  or  excess  of  jurisdiction  is  not  apparent  upon  the  face 
of  ftTe  priH'eediiii^s  it  is  discretionary  ivith  the  court  to  decide 
iiihether  the  party  applying  has  not,  by  laches  or  misconduct,  lost 
hi'syTgJii  to  the  icrit  to  which  ujider  other  circumstances  he  would 
'W^iititled.  The  reason  why,  notwithstanding  such  acquiescence, 
a  proTiTBrtion  is  granted '\vhe re  the  want  of  jurisdiction  is  apparent 
oirtirc— faeF'of "  the"  proceedings,  is  explained  by  Lord  Denham  in 
"Bodenham  v.  KicRetts,  supra,  to  l)e  for  the  sake  of  the  public, 
lest  "the  case  might  be  a  precedent  if  allowed  to  stand  without  im- 
peachment;"  and  I  would  add  for  myself,  for  it  is  a  want  of  juris- 
feltTon  of  which  the  court  is  informed  by  the  proceedings  before  it, 


466  FAROUHARSO^    V.    MORGAN.  §    I 

and  which  the  judge  should  have  observed,  and  a  point  which  he 
should  himself  have  taken. 

Now^jf  it  were  possible  for  him  to  do  so,  it  is  abundantly  clear^ 
thaT"^Ir.  Farquharson  has  by  his  conduct  precluded  himself  from 
claiming-  the  interposition  of  the  court  in  liis  favour.  That  he  has 
acquiesced  in  the  proceedings  is  beyond  dispute.  I  cannot  imagine  a 
stronger  case  of  acquiescence.  But  I  am  aware  that  the  award 
on  the  face  of  it  discloses  a  want  of  jurisdiction.  It  contains  and 
deals  with  matters  which  are  not  the  subjects  of  the  Agricultural 
Holdings  Act — matters  outside  that  act,  and  which  cannot  be  en- 
forced under  section  24  of  that  act.  In  such  circumstances  most 
reluctantly  I  am  compelled  to  hold  that  the  writ  ()f  prohibition  must 
issue. 

Davey^  L.  J. — Tlier£_are  two  principles  which  are  ingrained  in 
our  law.  One  is  that  parties  cannot  by  contract  oust  tHe~jurisdTction 
of  the  Queen's  Courts.  This  has  been  somewhat  modified  by  the 
power  given  to  the  court  by  section  1 1  of  the  common  law  procedure 
act,  1854,  (now  section  4  of  the  arbitration  act,  1889,)  to  give  effect 
to  an  agreement  to  refer  disputes  to  arbitration  subject  to  certain 
well  known  conditions;  but  subject  to  this  power  it  is  no  defense 
to  an  action,  otherwise  competent,  that  the  parties  have  agreed  to 
r^fer  the  question  in  dispute  to  arbitration,  or  to  provide  f'V,-  its 
settlement  in  some  other  mode.  The  other  principle  is  correlative 
to  the  first — that  the  parties  cannot  by  agreement  confer  upon  am- 
court  or  judge  a  coercive  jurisdiction  which  the  court  or-judge 
does  not  by  law  possess.  To  do  so  would  be  an  usurpation  of  a 
prerogative  of  the  crown ;  and  it  has  always  been  the  policy  of  our 
law,  as  a  question  of  public  order,  to  keep  inferior  courts  strictly 
within  their  proper  sphere  of  jurisdiction — see  the  judgment  of  the 
common  picas  in  Worthington  v.  Jeffries  (44  Law  Jr.  Rep.  C.  P. 
209;  Law  Rep.  10  C.  P.  379).  It  follows  that  a  party  may. 
notwithstanding  that  he  has  contracted  to  have  the  dispute  decided 
or  a  decision  in  the  matter  enforced  by  the  court  not  possessing 
by  law  jurisdiction,  refuse  to  be  bound  by  his  contract  and  object  to 
the  jurisdiction  subject  to  the  provisions  embodied  in  the  Arbitration 
Act  1889,  so  far  as  applicable.  It  also  follows  that  you  cannot 
give  jurisdiction  by  accfuiescence.  These  ]M-incii)les  are  so  well 
known  that  they  need  no  illustration  from  decided  cases  or  other 
authority. 

In  the  jjresent  Qa.SiU..Mr...  Farquharson,  the  aj^iilicant  for  a  prohi- 
bition, has  contracted  by  the  lease  of  November  29,  1888,  that  llie 
clauses  of  the  Agricultural  Holdings  (luigland)  Act^  1883,  relating 
to  procedure  and  contained  in  section  7  to  28  (both  inclusive)  shall 
ajjply  as  well  to  any  claim  of  the  outgoing  tenant  for  allowance  or 
compensation  to  be  rrfade 'tinder  the  provisions  of  the  lease  as  to  an} 
claim  under  the  said  act.     The  lease  makes  provision   for  certain 


^     I  I'ROlilLITION,   IN    GEMERAL.  467 

allowances  or  compensation  being  made  to  an  outgoing  tenant  at  the 
expiration  of  the  lease  as  to  various  matters  which  are  not  the  sub- 
jects of  allowance  or  compensation  under  the  act.  An  amended 
award  has  been  made  dealing  as  well  with  matters  which  are  prop- 
erly subjects  of  allowance  or  compensation  under  the  act  as  with 
matters  in  respect  of  which  allowance  can  only  be  claimed  under 
the  provisions  of  the  lease.  And  the  amended  award  on  the  face 
of  it  shows  the  matters  in  respect  of  which  the  sums  thereby 
awarded  are  given. 

On  the  24th  of  September  1893,  the  present  respondent  Morgan, 
made  an  application  to  the  county  court  to  enforce  the  award,  and 
the  learned  judge,  though  he  had  doubts  whether  he  had  jurisdiction, 
made  an"  order  to  that  effect.  The  present  applicant  and  appellant 
apjplied  to.the  Hight  Court  for  a  prohibition  against  the  county 
court  enforcing  the  award  or  proceeding  further  with  the  application. 
A  divisional  court  has  dismissed  that  application  on  the  ground 
that  under  the  circumstances  the  court  had  a  discretion  to  refuse 
the  prohibition  on  the  application  of  the  present  appellant.  The 
jiirisdiction  of  the  county  court  in  the  matter,  is  statutory,  and  is  con- 
ferred by  the  Agricultural  Holdings  Act.  Section  24  of  that  act 
is  in  the  following  terms.  (His  Lordship  read  the  section.)  It 
is  obvious  that  this  section  only  applies  to  money  agreed  or  awarded 
■orr"^r3ered  on  appeal  to  be  paid  in  respect  of  matters  wthin^the 
act,  and  gives  no  jurisdiction  over  awards  as  to  other  matters  made 
pursuant  to  a  contractual  submission  or  with  the  consent  of  parties. 
Indeed  it  was  not  and  could  not  be  denied  that  so  far  forth  as  the 
award  related  to  matters  outside  the  act,  the  county  court  judge  had 
no  jurisdiction  to  enforce  the  award,  and  the  applicant  was  prima 
facie  entitled  to  the  prohibition.  But  it  w^as  argued  that  the 
granting  of  a  prohibition  is  discretionary,  and  that  the  applicant  was 
estopped  or  precluded  by  his  conduct  from  claiming  a  prohibition. 
Reliance  was  placed  on  a  well  known  passage  in  Mr.  Justice  Willes' 
judgment  in  the  Mayor  of  London  v.  Cox,  which  has  been  cited  by 
Lord  Justice  Lopes.  This  passage  has  been  adopted  by  the  full 
court  of  appeal  as  a  correct  statement  of  the  law  in  Broad  v.  Per- 
kins,  (57  L.  J.  Rep.  O.  B.  638;  Law  Rep.  21  O.  B.  D.  533). 

It  will,  however,  be  observed  that  the  learned  judge's  statement 
is  confined  to  cases  where  the  defect  is  not  apparent,  and  depends 
upon  some  fact  in  the  knowledge  of  the  applicant  which  he  might 
have  brought  forward  in  the  court  below,  but  has  kept  back  without 
excuse — that  is,  where  the  applicant  has  been  guilty  of  some  mis- 
conduct in  the  proceedings,  and  has  in  a  sense  misled  the  court. 
To  the  same  effect  is  Lord  Mansfield's  judgment  in  Buggin  v.  Ben- 
nett, supra  "If  it  appears  on  the  face  of  the  proceedings  that  the 
court  below  have  no  jurisdiction,  a  prohibition  may  be  issued  at  any 
time,  either  before  or  after  sentence,  because  all  is  a  nullity;  it  is 


468  FAROUH  ARSON   V.    MORGAN.  §    I 

coram  lion  judicc.  But  where  it  does  not  appear  on  the  face  of  the 
proceedings,  if  the  defendant  below  will  lie  by,  and  suffer  that 
court  to  go  on,  under  an  apparent  jurisdiction  (as  upon  a  contract 
made  at  sea)" — Lord  Mansfield  was  there  speaking  of  an  admiralty 
case — "it  would  be  unreasonable  that  this  party  who  when  defendant 
below  has  thus  lain  by,  and  concealed  from  the  court  below  a  col- 
lateral matter,  should  come  hither  after  a  sentence  against  him  there, 
and  suggest  that  collateral  matter  as  a  cause  of  prohibition,  and 
obtain  a  prohibition  upon  it,  after  all  this  acquiescence  in  the  juris- 
diction of  the  court  below."  This  passage  was  quoted  by  Baron 
Parke  in  Robert  v.  Humby  (3  Mee.  &  W.  120)  in  which  case  the 
court  granted  a  prohibition  at  the  instance  of  the  party  to  the 
proceedings  in  a  case  where  the  want  of  jurisdiction  appeared  on 
the  face  of  the  proceedings,  even  after  sentence  in  the  inferior  court. 
The  reason  of  the  distinction  betwen  cases  in  which  the  excess  of 
jurisdiction  appears  on  the  face  of  the  proceedings  and  where  it 
does  not  so  appear  is  explained  by  Mr.  Justice  Coleridge  in  Mars- 
den  V.  Wardle  (3  E.  &  B.  695;  23  Law  Jr.  Rep.  Q.  B.  263). 
"There  is_reason,"  says  the  learned  judge,  "for  refusing  the  writ 
after  Judginent  in  the  courts  when  the  proceedings  set  forth  the 
detail  of  the  matter  and  the  party  has  the  oiiix^rtunity  of  moving 
before  judgment;  then  if  he~cIiooses  to  wait  and  take  the  chance 
of  judgment  in  his  favorTTie  mav  be  held  incompetent  to  complain 
of  excess  of  jurisdiction  if  judgment  is  against  him.  There  is,  how- 
ever, good  reason  for  departing  from  this  principle  where  the  delect 
is  apparent  on  the  face  of  the  proceeding's  below  .  because  the  com- 
plaint in  that  case  does  not  rest  on  the  evidence  of  tlie  complainant : 
and  if  snch  a  defective  record  were  allowiMJ  to  remain  and  support 
a  judgment  it  might  become  a  precedent,  and  that  which  was  in  truth 
an  excess  of  jurisdiction  might  be  considered  to  have  been  held  to 
be  legal."  Tlie  learned  judge  is  there  evidently  contrasting  cases 
where  the  excess  of  jurisdiction  depends  on  the  evidence  of  the  com- 
l)lainant  with  cases  in  which  it  is  apparent  on  the  face  of  the  pro- 
ceedings." In  the  county  court  it  is  true  there  is  no  record,  strictly 
speaking,  but  the  distinction  does  not,  I  think,  depend  on  the  existence 
of  a  formal  record,  but  is  one  of  substance,  whether  the  defect  is  ap- 
parent or  de])cnds  on  evidence.  In  the  ])resent  case  the  jurisdiction 
invoked  is  the  creation  of  a  statute  not  even  conferring  jurisdiction 
in  general  terms,  but  confined  to  a  particular  defined  subject  matter. 
The  first  question  which  a  judge  has  to  ask  himself  when  he  is 
invited  to  exercise  a  limited  statutory  jurisrliction  is  whether  the 
case  falls  within  the  defined  ambit  of  the  statute;  and  it  is  his 
duty  to  decline  to  make  an  order  as  judge  if,  and  so  far  as, 
the  matter  is  outside  the  jurisdiction;  and  if  he  does  not  do  so  he 
may  (if  a  judge  of  an  inferior  court)  be  restrained  b\  prohibition. 
In  the  present  case  the  limits  of  the  jurisdiction  a[>pcare(l  ( 1  repeat) 


§     I  I'KOHUilTlOX,   IN    GENERAL.  469 

on  the  fac€  of  the  statute,  and  the  fact  of  the  excess  appeared  on 
the  face  of  the  amended  award  wh^ch  the  court  was  asked 
to  enforce.  I  am  therefore  of  the  opinion  that  the  appellant  is  not 
precluded  from  relying  on  the  excess  of  jurisdiction  in  the  county 
court  either  by  his  covenant  in  the  lease  or  by  the  previous  proceed- 
ings in  relation  to  the  award.  In  Jones  v.  James  (19  Law  J.  Rep. 
Q.  B.  257)  which  was  cited  on  behalf  of  the  respondent,  it  is  to  be 
observed  that  it  is  doubtful  whether  the  court  had  exceeded  its 
jurisdiction,  and  Mr.  Justice  Earle  seems  to  have  treated  the  matter 
as  an  irregularity  in  practice  which  might  be  cured  by  the  defend- 
ant's waiver.  And  the  case  of  Moufet  v.  Washburn  (54  Law  Times 
n.  s.  16)  seems  to  have  been  a  case  of  the  same  character.  In  Jones 
V.  Owen  (5  D.  &  L.  669,  674;  18  Law  Journal  Rep.  Q.  B.  8.)  it  was 
held  by  Mr.  Justice  Patteson  that  where  there  was  a  total  want  of 
jurisdiction  no  consent  could  be  given,  and  that  learned  judge  said 
"It  is  said  that  the  attorney  for  the  defendant  did  not  object  to 
the  jurisdiction,  but  that  is  not  admitted  on  the  other  side.  At  all 
events,  there  was  a  total  want  of  jurisdiction  which  no  assent  could 
cure." 

The  summons  asks  for  a  prohibition  against  the  county  court 
judge  enforcing  the  whole  award,  but  at  the  bar  the  learned  coun- 
sel for  the  appellant  limited  the  prohibition  asked  for  to  so  much  of 
the  award  as  dealt  with  matters  outside  the  Agricultural  Holdings 
Act.  Although  I  thhik  that  the  applicant  is  not  precluded  from  ask- 
ing for  a  prohibition,  yet "Ke  is  doing  so  in  breach  of  his  contract,  and 

1  think  there  should  be  no  costs  in  the  court  below,  but  the  appellant 
should  have  the  costs  of  the  appeal. 

A2£eaLalIovved. 

In  accord. — Smith  v.  Whitney,  116  U.  S.  167,  173;  Weston  v.  City  Coun- 
cil, 2  Pet.   (U.  S.)  44.3:  Forster,  In  re,  4'B.  &  S.  187;  Mayor  v.  Cox,  L.  R., 

2  H.  L.  239;  Wortliington  v.  Jeffries,  L.  R..  10  C.  P.  379;  Burder  v.  Veley, 
12  A.  &  E.  233,  263 ;  Martin  v.  Mackonochie,  L.  R.,  3  Q.  B.  D.  730,  749 ; 
Ellis  V.  Fleming,  L.  R.,   i   C.   P.  D.  237,  240. 


4.     Existence  of  other  remedies. 

STATE  EX  REL.  BERRYHILL  v.  CORY,  JUDGE,  etc. 

1886.     Supreme  Court  of  Mix.\ksot.\.      t^~^  Minn.  178;  28  X.  W 

217. 

Writ  of  prohibition. 

Mtchell,  J. — This  is  not  a  proper  case  for  a  writ  of  prohibi- 
tion.    The  action  penHmgnnTlTe"nTunT^ 

fTetainerX_is_one   proceeding,   in    the   ordinary   way,   by   summons, 
pleading;.  Jrial  etc.     The  cause  of  action  set  forth  in  the  complaint 


470         THE  STATE  V.   THE  JUDGE  OF  THE  COM'l  COURT  OF   N.   O.  §     I 

is  within  the  jurisdiction  of  the  court.  TJie  only  question  is  whether 
tHat  court  has  power  to  try  and  determine  the  issues  presented  by 
tKe  allegations  of  fraud  and  usury  set  up  in  the  ahsVver.  "Tf  It 
errs  in  passing  upon  the  extent  of  its  jurisdiction  in  that  regard 
ah  adequate  mode  of  review  by  appeal  is  open  to  the  relator,  arid 
therefore  a  w-rit  of  prohibition  ought  not  to  issue.  High  Ex.  Rem. 
§  770;  State  V.  jMunicipal  Court,  26  Minn.  162;  s.  c.  2  N.  W.  166; 
State  V.  District  Court,  26  Minn.  233 ;  s.  c.  2  N.  W.  698. 
Writ  quashed. 


THE  STATE  v.  THE  JUDGE  OF  THE  COMMERCIAL 
COURT  OF  NEW  ORLEANS. 

1843.     Supreme'  Court  of  Louisiana.     4  Robinson,  48. 

(Garland,  J. — -Dubois,  a  member  of  the  firm  of  Dubois  &  Kendig, 
rej)resents_  that  Benjamin  Robertson,  had  obtained  a  judgment 
against  them  in  the  commercial  court,  and  issued  an  execution  there- 
on, by  virtue  of  which  the  sheriff  was  about  to  sell  property  of 
great  value,  and  that  N.  C.  &  L.  Folger,  had  commenced  a  suit 
against  them  by  attachment,  and  also  seized  certain  property.  .-He 
^iVers^^^hat  since  the  institution  of  these  suits,  he  has  been  compelled 
to  apply. for  the  benefit  of  the  bankrupt  law,  passed  by  congress  in 
1841 ;  that  the  usual  order  has  been  granted  on  this  application,  and 
the  notices  published,  but  that  no  decree  has  been  pronounced,  nor 
any  assignee  appointed ;  that,  in  conformity  to  law  he  has  surren- 
dered all  his  property,  and  that  of  the  firm  to  wliich  he  iDelongs"." 
He  avers,  that  by  his  apjilication,  all  judicial  proceedings  are  ar- 
rested, btJt  that,  notwithstanding,  the  judge  of  the  commercial  court, 
and  the  slTerTfrihe'feof,  persist  in  proceeding  with  the.aforesaid  suits 
and  execution,  and  will  sell  the  property  surrendered  unless  pre- 
vented. The  petitioner,  therefore,  prays  that^a  w^it  of  prohibition 
may  be  directed  to  the  aforesaid  jtidge,  and  that  the  sherlfiF  may  be 
enjoined  from  further  proceedings. 

A  rule  was  taken  on  the  judge  and  sheriff  to  show  cause  why 
a  prohibition  should  not  be  issued,  and  an  injunction  was  issued 
temporarily,  until  the  case  could  be  heard. 

The  judge  showed  for  cause : 

First.  That  it  isjjoJt^llegcd,  in  a  direct  maimer^Jhat^ILapplica- 
tion  was  made  to^stay  proceedings  in  the  said  suits,  nor  that  any 
j)roof  of  facts  was  made,  sufficient  to  authorize  him  to  arrest  pro- 
ceedings;  that  if  such  facts  existed,  they  ought  to  have  been  shown; 
and  that  no  prohibition  ought  to  be  issued,  until  a  regular  application, 
supported  by  evidence,  had  been  made  to  the  inferior  court,  and 
been  acted  ou. 


§    I  I'KOIIir.ITlON,   IX   GENERAL.  47I 

Second.  Tliat  iIk-  ;iii[)lii.  ;tii<>i)  is  onl}-  un  the  part  of_  one  of  the 
defendants,  towit,  Dubois ;  and  that  it  is  not  shown  that  the  pro- 
ceedings can  be  arrested  as  to  one,  and  "not  as  to  the  other. 

Third.  That  the  power  ^v^£^to_jhe_.supre_me^^court_to  issue  a 
prohibition,  is  only  in  aid  of  its  appellate  jurisdiction ;  and'Thal  it 
i^"not  shfTwlilhat  the  commercial  court  has  refused  an  appeal,  nor 
that  it  is  a  proceeding  in  disregard  of  one. 

Fourth.  Tl\at  Jhis  tribunal  has  no  power  to  act  as  an  aid  to  the 
jurisdiction  of  theTDistrict  to'urt  of  the  United  States."    '    '  '"■'" '"•"■ 

-b or  these  causes,  the  judge  prays  that  the  rule  may  be  discharged. 

The  judge  proceeds  to  say,  that  Robertson  had  obtained  a  judg- 
ment against  Dubois  &  Kendig  about  the  last  of  November,  1842,  on 
which  an  execution  had  been  issued ;  but  that  he  does  not  know  what 
has  taken  place  under  it. 

He  shows  for  further  cause,  that  nothing  appears  on  the  minutes 
or  records  of  the  court,  to  show  that  any  application  had  been  made 
to  arrest  the  proceedings  for  the  reason  assigned  in  the  petition,  and 
that  he  has  no  recollection  of  any  oral  application  to  that  effect. 

He  further  shows,  that  the  case  of  the  Folgers  was  commenced 
by  attachment,  under  which  a  number  of  horses  and  carriages  were 
seized,  and  that  the  plaintiff  took  a  rule  on  the  defendants  to  show 
cause  why  the  property  seized  should  not  be  sold,  on  the  ground  that 
it  was  of  a  perishable  nature,  and  that  the  expenses  of  the  horses 
would,  before  the  decision  of  the  suit,  amount  to  as  much  as  they 
were  worth.  When  this  rule  came  on  for  trial,  the  counsel  for  Du- 
bois &  Kendig  appeared  and  stated,  orally,  that  Dubois  had  applied 
to  be  declared  a  bankrupt,  since  the  rule  was  taken,  and  one  of  them 
had  a  newspaper  in  which  he  said  the  notice  had  been  published. 
The  judge  told  the  counsel  that  he  did  not  think  it  would  keep  him 
from  proceeding ;  that  it  was  best  the  property  should  be  sold ;  and 
that  it  was  immaterial  whether  the  sheriff  or  the  marshal  sold  it ; 
as  the  money  was  ordered  to  be  paid  into  court,  where  it  would  re- 
main until  the  fate  of  the  application  of  Dubois  would  be  known, 
when  the  assignee  might  claim  it.  The  rule  to  have  the  propertv 
sold  was  made  absolute,  whereupon  the  counsel  intimated  an  inten- 
tion to  appeal ;  but  the  judge  expressed  some  doubt  as  to  the  right 
to  appeal,  and  it  was  not  applied  for. 

It  is  true,  as  stated  by  the  judge  of  the  Commercial  Court  that 
the  writ"of  prohibition  is  only  one  of  the  means  by  which  this  court 
c3n~*exercise  its  appellate  jurisdiction.  An  application  for  it  is  one 
ofThe  modes  by  which  a  case  may  be  brought  before  us  for  exami- 
nation ;  and  it  may  be  issued  like  the  writ  of  mandamus,  even  where 
a  party  has  other  means  of  relief,  if  the  slowness  of  ordinary  legal 
forms  is  likely  to  produce  such  immediate  injury  or  mischief  as  ought 
to  be  prevented.  The  writ  of  mandamus  is  given  to  enable  this 
tribunal  to  command  inferior  courts  to  act,  in  cases  where  delay 


4/2  STATE  EX  REL.  DEPUY  V.  EVANS.  §  I 

will  cause  damage  and  injustice ;  and  that  of  prohibition,  to  re- 
strain them  where  acting  without  authority  would  have  the  same  ef- 
fect. We  have  heretofore  said  that  this  is  an  extraordinary  writ, 
and  should  only  be  issued  in  a  case  of  great  TiecessJtv.  -vyhpn  clearly 
shown  :  and  before  v,-e  will  issue  it,  it  must  appear  that  the  applicant 
has  applied  in  vain,  to  the  inferior  tribunals  for  relief.  In  the  pres- 
ent  instance,  no  such  showing  is  made. 

As  to  the  case  of  Robertson,  the  record  is  not  before  us,  and  there 
is  nothing  to  show  that  any  application  was  ever  made  to  the  com- 
mercial court,  to  arrest  the  proceedings  on  the  execution,  issued  in 
his  favor.  The  judge  says  there  never  was ;  and  nothing  from  the 
records  of  the  court  is  produced  to  disprove  his  statement,  or  to 
cause  us  to  doubt  its  correctness. 

In  the  case  of  the  Folgers,  it  appears  from  the  affidavit  of  the 
petitioner  and  the  answer  of  the  judge,  that  some  conversation  took 
place  as  to  the  application  of  Dubois  for  the  benefit  of  the  Bankrupt 
Act,  at  the  time  that  the  rule  before  mentioned  was  called  for  trial. 
But  the  record  does  not  show  that  any  objection  or  exception 
founded  on  that  fact  was  raised.  No  legal  evidence  of  it  was  ex- 
hibited, nor  does  it  appear  that  the  judge  ever  decided  on  it.  What 
occurred,  seems  to  have  been  nothing  more  than  a  conversation  be- 
tween the  judge  and  counsel.  The  former  says  that  he  made  no  de- 
cision, further  than  saying  when  it  was  stated  orally  that  an  applica- 
tion to  be  declared  a  bankrupt  was  pending,  that  he  "saw  nothing 
that  prevented  Dubois  from  appearing  as  defendant  in  the  rule." 
Upon  jiich^a  ,sta,tement  of  facts,  we  do  not  think  this  court  has  any 
power  to  interfere,  without  assuming  original  jurisdiction  in  the 
cause. 

Rule  discharged. 


STATE  EX  KKL.  DkPUY  v.  EVANS. 

1894.     Supreme  Court  of  Wisconsin      88  Wis.  255  ,  60  N.  W. 

433- 

('Ret.ator  upon  complaint  made  before  respondent  as  justice  of 
the  peace,  cliarglng.  relator  with  having  committed  the  crime  of 
aflultery  with  his  niece,  was  arrested  and  brought  before  said  jus- 
tice for  examTrTatmn.  and  was  thereafter  bound  OA^er  to  the  circuit 
court  for. trial.  Rcl.ildr  in  said  cf)nrt  ptea3ed  "not  guilty'  and  the 
trial  having  begun  and  pmcccdcfl.  the  court  sustained  an  objection 
fn  the  evidence  on  the  grounrl  that  the  information  did  not  charge  an 
fiffense  and  discharged  relator  from  custody.  Tlicre_Uj[")on  relator  was 
rc-arrcsted  upon  a  warrant  issued  by  another  justice, ITTr^'cTIoTTwas 


§    I  PROllIllITION,   IN    GENERAL  473 

removed  to  Dopp,  J.  P.,  and  by  him  dismissed  for  want  of  jurisdic- 
tion. Thereafter  another  complaint  chargmg  the  same  ofifense~was 
made  before  J'ewett,  J.  P.,  and  relator  was  again  arrested  on  a  war- 
rant issued  by  said  magistrate.  He  thereupon  made  the  statutory 
oath  of  prejudice  and  the  cause  was  removed  and  certified  to  re- 
sjwndent's  court,  although  he  was  not  the  next  nearest  justice  of 
the  peace.  Relator  pleaded  to  the  jurisdiction  and  also  former 
jeopardy  and  acquittal,  all  of  which  were  overruled,  ^hereupon 
retator  applied  for  a  writ  of  prohibition  to  said  respondent  magis- 
trate. Respondent  made  return  to  the  alternative  writ  and  relator 
demurred.) 

Cassoday,  J.  (After  stating  the  facts.)  In  this  state  marriage 
"between  parties  who  are  nearer  of  kin  than  first  cousins,  computed 
by  the  rule  of  the  civil  law,  whether  of  the  half  or  of  the  whole 
blood",  is  expressly  forbidden.  Rev.  Stats.,  §  2330.  Such  a  mar- 
riage, "if  solemnized  within  this  state,"  is  "absolutely  void  without 
any  judgment  of  divorce  or  other  legal  proceeding".  Id.,  §  2349. 
The  statute,  moreover,  declares  that  "Any  person  being  within  the 
degree  of  consanguinity  within  which  marriages  are  prohibited,  or 
declared  by  law  to  be  incestuous  and  void,  *  *  *  -^vho  shall 
commit  adultery  or  fornication  with  each  other,  shall  be  punished 
by  imprisonment  in  the  state  prison  not  more  than  ten  years  nor 
less  than  two  years."  Id.,  §  4582.  Of  course  the  justice  of  the 
peace  had  no  jurisdiction  to  hear,  try  and  determine  the  guilt  or  in- 
nocence of  the  accused  for  such  a  crime.  Id.,  §  4739.  But  he  did 
have  jurisdiction,  upon  proper  complaint  being  made,  to  issue  his 
warrant  in  proper  form,  and  cause  the  accused  to  be  brought  before 
him,  and  to  examine  into  the  matters  so  charged,  and  if  he  found 
upon  examination  that  the  ofifense  so  charged  had  been  committed, 
and  that  there  was  probable  cause  to  believe  the  prisoner  guilty, 
then  to  hold  him  to  bail  or  to  commit  him  to  trial.  Id.,  §§  4775- 
4792.  The  complaint  upon  which  the  relator  was  last  arrested  was 
subscribed  and  sworn  to  before  Justice  Jewitt  by  the  complainant, 
and  is  set  forth  in  the  foregoing  statement.  It  purports  to  have 
been  made  after  the  complainant  had  been  duly  sworn  and  hence 
must  be  regarded  as  a  sufficient  examination  of  the  complainant  on 
oath  to  satisfy  the  statute.  State  v.  Nervobig,  24  N.  W.  321,  33 
Minn.  480;  State  v.  Davie,  62  Wis.  305,  22  N.  W.  411 ;  it  contains  a 
substantial  statement  of  the  offense,  in  positive  terms,  and  that 
seems  to  be  sufificient.  Ford  v.  State,  3  Pinn.  449 ;  Gallagher  v. 
State,  26  Wis.  423. 

That  complaint,  therefore,  gave  to  Justice  Jewett  jurisdiction  to 
issue  a  warrant,  and  cause  the  relator  to  be  arrested  and  brought  be- 
fore TTTm,  an(Tto  examine  whether  the  offense  charged  had  been  com- 
mitted^,  and  7f  so,  whether  there  was  probable  cause  to  believe  the 
accused  wasguilty.     He  did  issue  a  warrant  and  caused  the  relator 


474  STATE  EX  REL.  DEPUY  V.  EVANS.  §  I 

to  be  brought  before  him  for  examination ;  and  thereupon  the  relator 
made  the  statutory  oath  of  prejudice,  and  demanded  a  change  of 
venue,  and  the  same  was  granted  by  sending  the  same  to  the  de- 
fendant, as  mentioned.  It  is  claimed  that  the  defendant,  as  justice, 
never  got  jurisdiction  of  the  cause,  because  there  was  another  jus- 
tice of  the  peace,  having  an  office  nearer  to  Justice  Jewett.than.  the 
defendant.  But  the  statute  did  not  require  Justice  Jewett  to  send 
the  cause  to  the  nearest  justice,  but  only  to  "transmit  all  the  papers 
in  the  case  to  the  nearest  justice  or  other  magistrate,  qualified  by 
law  to  conduct  the  examination."  Rev.  Sts.,  §  4809.  This  clearly 
implies  that  the  cause  is  not  to  be  sent  to  any  justice  or  other  magis- 
trate who  is  disqualified  by  law  to  conduct  such  examination,  even 
though  he  be  the  nearest.  Manifestly  the  question  whether  such 
"nearest  justice  or  other  magistrate",  is  so  qualified  or  disqualified 
must  be  summarily  determined  by  some  one.  We  have  no  doubt 
that  it  must  be  determined  by  the  justice  or  other  magistrate  before 
whom  such  oath  of  prejudice  is  so  filed ;  that  is  to  say,  in  this  case, 
by  Justice  Jewett.  He  necessarily  did  so  determine  that  question  in 
this  case  after  hearing  evidence  pro  and  con.  The  authority  to  so 
determine  includes  the  possibility  of  making  a  wTong  determination. 
Nevertheless  we  must,  upon  the  repeated  decisions  of  this  and  other 
courts,  hold  that  the  determination  of  the  justice  or  other  magistrate 
so  transmitting  the  cause  is  conclusive  upon  the  parties  and  the  jus- 
tice or  other  magistrate  to  whom  the  cause  is  sent.  Martin  v.  State, 
79  Wis.  173,  48  N.  W.  119;  State  v.  Sorenson,  84  Wis.  31,  53  N.  W. 
1 1 24. 

The  jurisdiction  thus  acquired  by  Justice  Jewett  by  virtue  of  the 
complaint  so  made  before  him  was  successfully  invoked  in  favor  of 
the  relator  by  the  filing  of  his  oath  of  prejudice  as  mentioned.  Upon 
the  filing  of  such  oath  and  the  transmission  of  the  papers,  such  juris- 
diction was  necessarity  transmitted  to  and  vested  in  the  defendant 
as  such  justice  of  the  peace.  The  exercise  of  the  jurisdiction  so 
vested  in  the  defendant,  was  thereupon  invoked  by  the  relator's  ask- 
ing the  defendant  as  such  justice,  to  dismiss  the  proceedings  on  the 
ground  that  he  had  previously  been  put  in  jeopardy  of  punishment 
for  the  same  oflFense,  and  upon  the  further  ground  that  the  cause 
should  have  been  sent  to  Justice  Kimball,  instead  of  the  defendant ; 
but  the  dcfendant_as._suc.hjustice,  refused  to  dismiss  upon  either  of 
those  grounds. 

Tlie  question  whether  the  warrant  issued  by  Justice  Jewett  was 
sufficient  in  form  and  substance  to  authorize  the  arrest  of  the  relator, 
.-'.nd  the  holding  of  him  in  custody  is  an  entirely  different  question, 
ft  is  a  question  which  might  properly  have  been  submitted  to  and 
passed  upon  Ijy  either  Justice  Jewett  or  the  defendant.  If  what 
purports  to  be  a  copy  of  the  warrant,  before  us,  is  correct,  theiiihe 
warrant  was  certainlv  defective.     Tt  nowhere  mentions  anv  town. 


§     I  PROHimXION,   IN   GENERAL.  475 

village,  city  or  county  in  which  the  alleged  offense  was  committed 
or  the  proceeding  instituted.  The  statute  requires  the  warrant  to  re- 
cite "the  substance  of  the  accusation  and  requiring  the  officer  to 
whom  it  shall  be  directed  forthwith  to  take  the  person  accused  and 
bring  him  before  the  said  magistrate  or  before  some  other  magis- 
trate of  the  county,  to  be  dealt  with  according  to  law."  Rev.  Sts., 
§  4776.  The  statute  does  not  require  the  complaint  to  be  attached 
to  or  accompany  the  warrant,  but  the  sheriff  or  other  officer  re- 
ceives the  warrant  alone  to  be  executed.  The  words  "said  county" 
in  the  warrant  in  question,  are  without  significance,  since  no  county 
is  therein  mentioned.  The  questions  recur  whether  a  writ  of  pro- 
hibition should  be  granted  by  reason  of  such  defect  in  the  warrant, 
or  such  other  former  alleged  jeopardy  of  punishment.  Xhis  court 
has  repeatedly;  held  that  a  writ  of  prohibition  will  not  b^'"gfaiited 
where  there  is  an^  other  adequate  legal  remedy.  State  v.  Burton', 
fi  Wis. "50;  State  ex  rel.  Dilworth  v.  Braun,  31  Wis.  606;  In  re 
Radl,  86  Wis.  645,  57  N.  W.  1105,  and  cases  there  cited.  High, 
Ex.  Rem.,  §  770.  In  the  case  last  cited  this  court  refused  to  grant 
such  writ  to  restrain  a  mere  de  facto  justice  of  the  peace  from  trying 
and  determining  a  criminal  case  pending  before  him.  In  the  Dil- 
worth case  cited,  the  writ  was  refused  because  the  relator  had  an  ade- 
quate remedy  by  another  ordinary  legal  proceeding,  towit,  by  prov- 
ing in  the  same  action  the  former  judgment  in  bar.  For  the  defect^ 
in  the  warrant  mentioned,  the  relator  certainly  had  nunierous  other 
adequate  reiv.edies.  To  allow  such  writ  in  such  a  case  is  to  sanction 
its  allowance  in  every  case  where  the  warrant  is  void  upon  its  face, 
or  where  the  complaint,  information  or  indictment  is  insufficient. 
That  would  be  a  complete  revolution  in  criminal  procedure.  So 
this  court  has  repeatedly  held  that  under  our  statutes  such  writs 
issue  only  to  restrain  the  acts  of  a  court  or  other  inferior  tribunal 
exercising  some  judicial  power  which  it  has  no  legal  authority  to  ex- 
ercise at  all.  Rev.  Stats.,  §§  3457-3462;  State  v.  Gary,  33  Wis.  93; 
In  re  Radl,  86  Wis.  645,  57  N.  W.  1105.  In  State  v.  Keyes,  75  Wis. 
238,  44  N.  W.  13,  the  writ  was  invoked  on  the  ground  that  the  mu- 
nicipal judge  was.  without  legal  authority  exercising  the  inquisitorial 
function  vested  only  in  the  grand  jury,  but  the  court  held  otherwise. 
In  that  case,  the  present  chief  justice  speaking  for  the  court,  said: 
"The  writ  lies  only  to  restrain  the  exercise  of  judicial  functions  out- 
side or  beyond  his  (the  municipal  judge's)  jurisdiction  in  the  mat- 
ter." 75  Wis.  298,  44  N.  W.  13.  The  principles  applicable  are  well 
stated  by  a  late  text  writer:  "x\.  writ  of  prohibition  is  an  extraordi- 
nary writ  issuing  out  of  a  court  of  superior  jurisdiction,  and  di- 
rected to  an  inferior  court,  commanding  it  to  cease  entertaining 
|urisdicti(Mi  in  a  cause  or  proceeding  over  which  it  has  no  control,  or 
where' such  inferior  tribunal  assumes  to  entertain  a  cause  over  wHrch 
itTias  juri?(1;ci'i  n.  hvX  goes  beyond  its  legitimate  powers,  and  trans- 


476  STATE  EX  REL.  DEPUY  V.  EVAXS.  §  I 

gresses  the  bounds  prescribed  to  it  by  law.  *  *  *  It  should  be 
Tssued  only  in  cases  of  extreme  necessity,  and  not  for  grievances 
which  may  be  redressed  by  ordinary  proceedings  at  law  or  in 
equity :  and  it  is  not  demandable  as  a  matter  of  right,  but  of  sound 
iudic'ial  discretion,  to  be  granted  or  withheld  according  to  the  cir- 
cumstances of  each  particular  case.  *  *  *  It  is  the  means  by 
which  the  superior  court  exercises  its  supervisory  power  over  the 
inferior  court,  and  keeps  it  within  the  limits  of  its  rightful  jurisdic- 
tion." 19  Am.  &  Eng.  Enc.  of  Law,  263.  To  the  same  effect,  High, 
Ex.  Rem.  (2d  ed.)  762,  763,  765,  781.  It  is  collateral  to  and  inde- 
pendent of  the  action  or  proceeding  sought  to  be  prohibited,  and  is 
to  prevent  further  prosecution  of  the  same  by  a  judicial  tribunal 
having  no  jurisdiction  thereof.  Id.  A  writ  of  prohibition  is  not  to 
perform  the  office  of  a  writ  of  error.  Its  purpose  is  to  prevent  an 
inferior  tribunal  from  assuming  the  jurisdiction  not  legally  vested  in 
it,  or  from  exceeding  its  lawful  authority.  State  v.  St.  Louis  Court 
of  Appeals,  69  Mo.  216,  12  S.  W.  661 ;  Alderton  v.  Archer.  14  O.  B. 
D.  I.  Where  the  inferior  tribunal  has  jurisdiction  of  the  subject 
matter,  and  the  defendant  is  duly  ser^-ed  with  process  or  voluntarily 
appears  a  writ  of  prohibition  will  not  be  granted.  In  re  Cooper.  143 
L'.  S.  742,  12  Sup.  Ct.  453.  If.  as  claimed,  the  relator  had  previously 
been  put  in  jeopardy  of  punishment  for  the  same  offense,  then  that 
was  a  legitimate  matter  of  defense  in  the  ordinary  way.  A  writ  of 
prohibition  is  not  to  be  resorted  to  j\vhere  the  usuaj  and  ordinary 
forms  of  remedy  are  sufficient  to  affor3  redre??.  as  T)y  motion,  trial, 
appeal,  writ  of  error,  habeas  corpus,  or  otherwise.  State  v.'Xathali. 
4  Rich.  Law.  513 :  State  v.  Cory,  35  :Minn.  ijK  23  N.  W.  217:  High, 
Ex.  Rem.  C2d  ed.).  §  771.  \\Tiere  the  inferior  tribunal  has  juris- 
diction to  do  the  act  sought  to  be  prohibited,  but  the  manner  of  doing 
it  is  improper  or  even  unauthorized,  a  writ  of  prohibition  is  not  the 
remedy.  Ex  parte  Smith.  23  Ala.  04:  People  v.  Whitney.  47  Cal. 
:^84;  State  v.  Judge  of  Fourth  District  Court,  22  La.  Ann.  115; 
ba>'ton  V.  Paine.  13  Minn.  493  (Gil.  454).  The  demurrer  to  the  re- 
turn is  overruled,  and  the  alternative  writ  of  prohibition  is  quashed. 

See  also  Braudlacht.  Ex  parte.  2  Hill  (N.  Y.\  367:  Smith.  Ex  parte, 
2-i,  .-Ma.  94;  State  v.  Burton,  n  Wis.  50:  Hamilton.  Ex  parte,  51  Ala.  62: 
State  V.  Elkin,  130  Mo.  90;  People  v.  Wayne  Co.  Cir.  Ct..  11  Mich.  393; 
State  V.  Bowerman.  40  Mo.  App.  576:  Jaquith  v.  Fuller.  167  Mass.  123; 
Rice.  In  re,  155  U.  S.  396;  Tupper  y.  Dart.  104  Ga.  179:  State  v.  Hocker, 
%■>,  Fla.  283:  Coker  v.  Superior  Court,  58  Cal.  177;  Coleman  v.  Dalton.  71 
Mo.  App.  14;  State  v.  Price,  8  N.  J.  L.  358;  State  v.  Judge.  48  La.  Ann. 


I  PROHIBITION,   IN   GENERAL.  477 

5.     A  preventive,  not  a  corrective  remedy. 


HAVEMEYER  et  al.  v.  SUPERIOR  COURT  OF  THE  CITY 
AND  COUNTY  OF  SAN  FRANCISCO. 

1890.    Supreme  Court  of  California.    84  Cal.  327;  24  Pac.  121 ; 

Post  p.  519. 


UNITED  STATES  v.  HOFFMAN. 

1866.     Supreme  Court  of  the  United  States.     4  Wallace  158. 

On  a  motion  for  prohibition. 

At  the  last  term  of  this  court  the  relator  made  application  for  a 
wrrTof  prohibition  to  the  jiulge  of  the  District  Court  of  the  Northern 
District  of  California,  to  prevent  that  court  from  proceeding  further 
ih'"a~ceFfain  cause  in  admiralty.  This  court  without  looking  into 
the  cflTe'stion  of  the  alleged  want  of  jurisdiction,  granted  a  rule  on  the 
judge  of  that  court  to  show  cause  why  the  writ  should  not  be  issued ; 
and  an  order  accompanied  the  rule,  that  he  should  proceed  no  fur- 
ther in  the  case  until  the  decision  of  this  court  in  the  premises. 

Th_e  jeturn  of  the  judge  to  that  rule  was  now  before  this  court. 
The  substance  of  it  was,  that  after  the  rule  had  been  served  upon 
him  ihe  libellant  ill  the  admiralty  suit  came  into  court,  and  moved 
for  permission  to  pay  all  the  costs  that  had  accrued,  and  to  dismiss 
tlie  s^uit.  After  hearing  argument,  the  court  granted  the  motion,  and 
the  HFellant  having  paid  all  the  costs  of  both  parties,  an  order  was 
made  dismissing  the  suit. 

The  relator  now  asked  that  the  writ  of  prohibition  might  issue 
notwithstanding  the  return,  and  whether  it  should  or  not,  presented 
the  question  to  be  here  decided.     *     *     * 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  writ  of  prohibition  ,as,its_name  imports,  is  one  which  com- 
mands the  person  to  whom  it  is  directed  not  to  do  something  which, 
by  the  suggestion  of  the  relator,  the  court  is  informed  he  is  about  to 
do.  If  the  thing  be  already  done,  it  is  manifest  the  writ  of  prohibi- 
tion cannot  undo  it,  for  that  would  require  an  afifirmative  act ;  and 
the  only  eflfect  of  a  writ  of  prohibition  is  to  suspend  all  action,  and 
to  prevent  any  further  proceeding  in  the  prohibited  direction.  In  the 
case  before  us  the  writ,  from  its  very  nature,  could  do  no  moreman 
forbid  the'7udge  of  the  district  court  from  proceeding  any  TuffHer^n 
the  case  in  admiralty. 

The  return  shows  that  such  an  order  is  unnecessary,  and  will  be 
wholly  useless,  tor  the  case  is  not  now  pending  before  that  court, 
and  there  is  no  reason  to  suppose  that  it  will  be  in  any  manner  re- 


4/8  UNITED    STATES    V.    HOFFMAN.  §     I 

vived  or  brought  up  again  for  action.    The  facts  shown  by  the  return 
negative  such  a  presumption. 

Counsel  has  argued  very  ingeniously  that  the  case  should^ be  con- 
sidered as  remaining  in  the  court  below,  in  the  sanie  position  that  it 
was  when  the  rule  issued  from  this  court ;  but  we  cannol;  so  regard 
it.  By  the  action  of  the  libellant  and  the  consent  of  the  courT7  the 
case  is  out  of  court  and  the  relator  is  no  longer  harassed  by  an  at- 
tempt to  exercise  over  him  a  jurisdiction  which  he  claims  to  be  un- 
warranted. If  the  return  shows  no  more,  it  shows  that  the  district 
judge  has  no  intention  of  proceeding  further  in  that  case.  Now, 
ought  the  writ  to  issue  to  him  under  such  circumstances?  It  would 
seem  to  be  an  offensive  and  useless  exercise  of  authority  for  the 
court  to  order  it. 

The  suggestion  that  there  are  or  may  be  other  cases  against  the 
relator  of  the  same  character  can  have  no  legal  force  in  this  case. 
If  they  are  now  pending,  and  the  relator  will  satisfy  the  court  that 
they  are  proper  cases  for  the  exercise  of  the  court's  authority,  it 
would  probably  issue  writs  instead  of  a  rule,  but  a  writ  in  this  case 
could  not  restrain  the  judge  in  the  other  cases  by  its  own  force,  and 
could  affect  his  action  only  so  far  as  he  might  respect  the  principle 
on  which  the  court  acted  in  this  case.  We  are  not  prepared  to  adopt 
the  rule  that  we  will  issue  a  writ  in  a  case  where  its  issue  is  not  jus- 
tified, for  the  sole  purpose  of  establishing  a  principle  to  govern  other 
cases. 

We  have  examined  carefully  all  the  cases  referred  to  by  counsel 
which  show  that  a  prohibition  may  issue  after  sentence  or  judgment ; 
but  in  all  these  cases  something  remained  which  the  court  or  party  to 
whom  the  writ  was  directed  might  do,  and  probably  would  have  done, 
as  the  collection  of  costs,  or  otherwise  enforcing  the  sentence. 

Here  the  return  shows  that  nothing  is  left  to  be  done  in  the  case. 
It  is  altogether  gone  out  of  the  court. 

These  views  are  supported  by  the  following  cases : 

In  United  States  v.  Peters  (3  Dallas  121),  which  was  an  applica- 
tion for  prohibition  to  the  admiralty,  this  court  suspended  its  de- 
cision to  give  the  libellant  an  opportunity  to  dismiss  his  libel.  The 
court  finally  issued  the  writ,  but  there  seems  no  reason  to  doubt, 
from  the  report  of  the  case,  that  it  would  have  considered  such  action 
by  the  libellant  as  an  answer  to  the  request  for  the  writ. 

In  the  case  of  Hall  v.  Norwood  (Siderfin  166).  a  very  old  case, 
when  writs  of  prohibition  were  much  more  common  than  now,  a 
prohibition  was  asked  to  a  court  of  the  Cinque  Ports  at  Dover.  While 
the  case  was  under  consideration,  the  reporter  says:  "On  the  other 
hand  the  court  was  informed  that  they  had  proceeded  to  judgment 
and  cxccutinn  at  Dover,  and  therefore  that  they  moved  here  too  late 
for  a  prohibition,  and  of  this  opinion  was  the  court,  since  there  is  no 
person  to  Ix-  i)rohil)ited,  and  possessions  arc  never  taken  away  or 


§    I  PROHIBITION,   IN   GENERAL.  479 

disturbed  by  prohibitions."     The  marginal  note  by  the  reporter  is 
this:   "Prohibkipn  \yill  not  He  after  the  ...cause  is  ended." 
The  ruTenieretofore  granted  in  this  case  is  discharged. 

In   accord. — State   v.    Stackhouse,    14    S.   Car.   417;  Hull   v.    Superior    Ct., 

63  Cal.  179;  Dayton  v.  Payne,  13  Minn.  493;  State  v.  Potts,  50  La.  Ann. 
109;    Brooks  V.   Warren,   5   Utah,  89. 

But  as  long  as  any  part  of  the  void  judgment  of  the  court  remains  un- 
executed, prohibition  will  lie.  State  v.  Rombauer,  105  Mo.  103 ;  Have- 
meyer  v.  Superior  Ct.,  84  Cal.  327;  St.  Louis,  etc.,  R.  Co.  v.  Wear,  135 
Mo.  230;    State  v.   Elkin,   130  Mo.  90. 


STATE  EX  REL.  CAMPBEI  L  v.  ST.  LOUIS  COURT  OF 

APPEALS. 

1888.     Supreme  Court  of  Missouri.     97  Mo.  276. 

Black,  J.  The  prayer  of  the  petition  is,  that  the  St.  Louis  Court 
of  Appeals.J3ej)rohibited  from  taking  further  cognizance  of  the  case 
oTTuchard  v.  Campbell  &  Houck,  wlio  are  the  relators  in  this  case, 
alncTthat  the  court  be  commanded  to  transfer  the  cause  to  this  court, 
on  the  ground  that  we  alone  have  jurisdiction.  From  the  pleadings 
'ir'appears  the  city  of  Cape  Girardeau  passed  an  ordinance  giving  to 
C"arro21_the_sole  and  exclusive  right  to  operate  a  steam  ferry-boat 
from  that  city  to  the  Illinois  shore,  and  of  receiving  and  landing  pas- 
sengers and  property  within  the  corporate  limits  of  the  city,  for  the 
period  of  ten  years.  Carroll  had  a  license  for  a  like  number  of  years 
from  the  local  authorities  on  the  Illinois  shore.  The  city  of  Cape 
Girardeau  refused  Campbell  and  Houck  a  ferry  license,  and,  with- 
out a  license,  they  put  their  steamboat  in  the  ferry  business  in  o]ipo- 
sition  to  Carroll,  receiving  and  landing  passengers  wathin  the  cor- 
porate limits  of  the  city. 

Carroll  commenced  his  suit  in  the  circuit  court  against  the  relators 
and  p^ocii^red  a  .temporary  injunction  restraining  them  from  operat- 
ing their  ferry  boat  within  the  limits  of  the  city.  The  defendant  an- 
swered and  also  filed  motion  to  dismiss  the  temporary  injunction, 
and  iipon  a  hearing  the  injunction  was  dissolved  and  the  petition  dis- 
missed.^ On  tlic  fifth  of  October,  1866,  Carroll  gave  bond  and  per- 
fected an  appeal  to  the  St.  Louis  Court  of  Appeals.  In  that. court, 
Carroll" filed  an  information  in  the  case,  ..stating  that  relators  had 
violated  the  temporary  injunction  bv  runninsf  their  ferryboat  after 
he  had  perfected  his  appeal.  To  a  rule  issued  by  the  St.  Louis  Court 
of  Appeals  to  show  cause  why  they  should  not  be  attached  for  con- 
tempt, the  relators  made  formal  answer,  claiming,  first,  that  the  ap- 
peal from  the  circuit  court  did  not  reinstate  the  temporary  injunc- 
tion ;  second,  that  they  had  violated  no  process  of  the  St.  Louis  Court 
of  Appeals ;  and,  third,  stating  that  the  case  was  one  involving  the 


480  CAMPBELL    V.    ST.    LOUIS    COURT    OF    APPEALS.  §    I 

construction  of  the  constitution  of  the  United ^t^tes^ad  .of  this 
staTe".  and  the  supreme  court  alone  had  jurisdiction,  and  asked 
Hhat  the  cause  be  transferred  to  this  court.  To  this  answer,  Carroll 
filed  a  demurrer  and  the  court  took  the  matter  under  advisement. 
The  court,  in  the  meantime,  heard  the  case  on  its  merits,  the  relators 
insisting  that  the  court  had  no  jurisdiction  of  the  appeal. 

On  the  third  of  May,  1888,  the  court  of  appeals  rendered  a  judg- 
menrfeversing  the  decision  of  the  circuit  "courty  anTentering'a  judg- 
nient  enjoining  the  defendants,  relators  here,  from  operating  their 
ferryboat ;  and  at  the  same  time  ordered  an  attachment  for  the  ^- 
fendants,  to  the  end  that  they  be  brought  to  the  bar  of  the  court  to 
receive  punishment  for  violating  the  temporary  injunction  issued  by 
the  circuit  court.  Thereupon  the  defendants  commenced  this  pro- 
ceeding. 

The  first  and  most  important  question  to  be  determined  is,  whether 
the  court  of  appeals  had  jurisdiction  of  the  case  of  Carroll  v.  Houck 
&  Campbell  on  the  appeal  from  the  cuxuit  court ;  connected  with  that 
is  a  question  of  pleading.  By  section  12,  art.  6,  of  the  constitution 
and  the  amendment  thereto,  adopted  in  1884,  this  court  has  juris- 
diction "in  all  cases  involving  tjie  construction  of  the  constitution  of 
the  United  States  or  of  this  state."  In  such'  cases ''fhe  appeal  should 
be  to  this  court,  for  it  has  exclusive  jurisdiction  in  all  such  cases. 
Acts  of  1883.  p.  216,  sec.  5.  By  the  act  of  March  18,  1885  (Acts  of 
1885,  p.  121),  it  is  provided  that  where  an  appeal  is  taken  to  either 
of  the  courts  of  appeal,  when  it  should  have  been  allowed  to  this 
court,  the  court  of  appeals  must  transfer  the  cause  to  this,  the  su- 
preme court.     *     *     * 

The  court  of  appeals  when  speaking  of  its  jurisdiction  to  deter- 
mine the  question  made  in  respect  of  the  constitution  of  the  United 
States,  says :  "We  have  uniformly  held  that  such  a  question,  in  order 
to  be  considered  with  reference  to  jurisdiction,  *  *  *  must  be 
at  least  fairly  debatable.  The  question,  as  here  raised,  is  not  de- 
batable at  all.  It  is  set  at  rest  forever,  so  far  as  this  court  is  con- 
cerned, by  our  conclusions  in  the  City  of  St.  Louis  v.  Waterloo- 
Carondelet  T.  &  F.  Co.,  14  Mo.  App.  216."  We  cannot  yield  our 
assent  to  that  disposition  of  the  question.  It  is  made  the  duty  of  this 
roiirt  to  determine  constitutional  questions  when  they  arc  fairly 
raised  by  the  record,  and  that  court  is  without  jurisdiction  in  such 
cases,  and  hence  its  adjudications  cannot  set  them  at  rest.  This 
court  will  not  give  countenance  to  sham  questions  made  for  the  mere 
])urpose  of  giving  this  court  jurisdiction  of  the  whole  case.  But 
that  is  not  the  case  here.  Conceding  to  the  city  of  Cape  Girardeau 
the  right,  and  the  exclusive  right  to  license  ferry  boats,  and  to -make 
and  collect  reasonable  wharf  charges,  and  to  regulate  the  landing  of 
.»;uch  boats ;  still  the  ferry  is  one  between  different  states,  and  there- 
fore concerns  f-ommerce  between  the  states;  and  whether  the 
city  shall  say  lli.it   this  infer-state  traffic  shall  be  carried  on  by  one 


$    I  PROHIBITION,   IN   GENERAL.  4»I 

person  onl}',  presents  a  question,  to  say  the  least  of  it,  worthy  of  our 
consideration. 

But  the  present  inquiry  is  not  as  to  the  merits  of  these  questions 
or  as  to  either  of  them,  presented  by  the  appeal.  The  inquiry  is, 
does  the  record  in  _tlie  case  of  Carroll  v.  Campbell  and  Houck  as 
loHged  in^the  court  of  appeals,  present  a  question  involving  a  con- 
struction of  the  constitution  of  the  United_States, „Qr...Qi.this  state, 
anST  we  have  seen  that  it  does;  indeed,  as  before  stated,  they  are  the 
onTy~questi'ons  in  the  case;  and  it  follows  that  the  court  of  appeals  is 
without  jurisdiction  to  hear  and  determine  the  appeal. 

Prohibition  is  a  preventive,  and  not  a  corrective,  remedy.  Says 
High :  "Where  the  proceedings  which  it  is  sought  to  prohibit  have 
already  been  disposed  of  by  the  court,  and  nothing  remains  to  be 
done  either  by  the  court  or  by  the  parties,  the  case  having  been  ab- 
solutely dismissed  by  the  inferior  tribunal,  prohibition  will  not  lie." 
High,  Ex.  Leg.  Rem.,  §  766.  But  where  the  want  of  jurisdiction  ap- 
pears on  the  face  of  the  proceedings,  prohibition  will  lie  after  judg- 
ment, if  anything  remains  to  be  done  under  the  judgment.  Lloyd  on 
Prohibition,  12;  High,  Ex.  Rem.,  §  774.  But  in  the  present  case  the 
procedings  in  the  court  of  appeals  are  not  at  an  end.  The  attach- 
riienf  for  "contempt  has  not  been  executed.  The  threatened  judgment 
has  been  stayed  only  by  the  rule  issued  in  the  present  case.  Since, 
.  therefore,  the  relators  have  no  other  remedy,  thev  are  entitled  to  the 
writ  of  prohibition. 

Our  rule  made  on  filing  of  the  petition  required  the  court  of  ap- 
peals to  show  cause  why  the  case  of  Carroll  v.  Houck  and  Campbell 
should  not  be  certified  to  this  court  and  the  question  is,  whether  the 
writ  should  contain  a  clause  requiring  that  appeal  to  be  transferred 
to  this  court.  In  general,  it  is  not  the  office  of  prohibition  to  undo 
that  which  has  been  done.  Its  office  as  before  stated,  is  preventive. 
Lloyd,  however,  says,  when  speaking  of  this  general  rule :  "But  as 
the  superior  courts  will  interfere  after  execution,  it  follows  that  in 
such  a  case  the  writ  must  have  a  more  extensive  operation,  and  we 
find  it  so  laid  down  in  many  of  the  old  authorities."  And  further  on 
he  says  "Prohibition  will  in  such  cases  have  an  effect  similar  to  that 
of  a  writ  oiTrestitution,  and  must  not  only  command  the  person  to 
wTiom  it' is  directed  to  surcease,  luit  also  to  revoke  what  he  has  al- 
ready done."  Lloyd  on  Prohibition,  67.  The  principle  asserted  by 
this  author,  may,  we  think,  be  applied  to  the  present  case.  It  should 
be  applied  with  great  care.  But  in  the  present  case,  the  writ  of  pro- 
hibition is  called  into  requisition,  to  some  extent,  in  aid  of  our  ap- 
pellate jurisdiction.  In  view  of  this  fact  and  since  the  wTit  must  go, 
we  conclude  that  as  an  incident  to  its  general  command,  it  may  con- 
tain a^cTause  requiring  the  court  of  appeals  to  transfer  that  case  to 
tliis  C()urt. 

Willi  this  result  we  need  not  consider  the  other  questions  dis- 


482  WEST  V.   COUNTY  COURT  OF  CLARK  COU.NTY.  §     I 

cussed  in  the  briefs.     The  rule  heretofore  issued  to  show  cause  is 
therefore  made  absokite. 

Barclay,  J.,  not  sitting :  the  other  judges  concur. 

6.     Reaches  only  judicial  acts  and  directed  only  to  judicial  tribu- 
nals. 

STATE  EX  REL.  WEST  et  al.  v.  COUNTY  COURT  OF  CLARK 

COUNTY. 

1867.     Supreme  Court  of  Missouri.     41  Mo.  44. 

Suggestion  for  a  writ  of  prohibition. 

Holmes^  ].,  delivered  the  opinion  of  the  court. 

This  is  a  suggestion  accompanied  wdth  an  exemplification  of  the 
record  of  the  county  court  of  Clark  County,  filed  in  this  court  by 
the  relators,  supported  by  affidavit  and  pxaj'ing  for  a,  writ  of  prohibi- 
tion  against  the  justices  of  the  county  court  of  said  count\" ;  and 
against  the  commissioner  appointed  by  the  court  to  select  a  site  for 
a  seat  of  justice  of  said  county,  and  the  contractor  with  the  court 
for  the  erection  of  county  building's  at  the  place  selected,  to  restrain 
tSem"Trom"furt'lTeFp'roceediiig  in fhe  matter  of  the  removal  of  the 
seat  of  justice  of  said  county,  on  the  ground  that  the  court  was  ex-- 
ceeding  its  jurisdiction.     *     *     * 

It.  is  clear  that  the  county  court  did  not  proceed  in  accordance 
with  the  provisions  of  this  act.  A  majority  only  and  not  "two-thirds 
of  the  legally  registered  voters,"  as  expressly  required,  had  voted  for 
the  removal.  The  proceedings  in  other  respects  wnc  in  direct  con- 
travention of  the  only  law  wdiich  gave  them  power  oxer  tlic  subject. 
They  were  acting  in  an  administrative  capacity-  and  as  tlic  a'^^cnts  of 
the  county,  and  were  bound  to  pursue  the  autliority  given  by  the 
statute,  and  to  act  within  the  scope  given  them  by  their  limited  and 
special  power ;  and  all  persons  dealing  with  the  court,  thus  acting  in 
behalf  of  the  county,  were  bound  to  know  the  law  that  conferred  the 
authority.  Wolcutt  v.  Lawrence  County,  26  Mo.  272 ;  Sheeley  v. 
Wiggs  ct  al.,  32  Mo.  398. 

A  more  difficult  question. prises  whether  prohibition  is  the  remedy 
in  "siich  a  cgise!  The  duties  of  the  county  courts  are  partly  judicial 
and  in  part  merely  admin istTatTve'."~'^t'3ite'v.  Cooper  Co.  Ct.,  17  Mo. 
507.  In  "the  exercise  oT  that  portion  of  their  jurisdiction  which  is 
juflicial  in  its  nature,  as  in  matters  of  probate,  accounts,  guardians, 
niinr)rs,  lunatics,  apprentices,  and  the  like,  in  which  an  ap]:)eal  is  al- 
lowed to  the  circuit  courts,  the  county  courts  are  a  branch  of  the 
judiciary  r)f  ijie  state,  and  as  much  state  courts  as  the  Circuit  Courts. 
Miller  v.  Iron  Co.,  29  Mo.  122.  And  if  the  court  were  exceeding  its 
proper   jurisdiction   in   matters   of   this    kind,    or   were   proceeding 


§     1  I'KOIliniTlON,   IN    GENERAL,  483 

judicially  upon  a  misconstruction  of  a  statute  involving  a  question 
of  jurisdiction  in  any  suit  pending  between  parties  (though  the  coun- 
ty might  be  one  of  the  parties)  there  is  no  doubt  that  a  prohibition 
might  be  granted,  at  the  discretion  of  the  court,  at  the  instance  of 
any  one  of  the  parties,  or  even  of  a  stranger  to  the  suit.  Thomas  v. 
Mead,  36  Mo.  232 ;  Howard  v.  Pierce,  38  Mo.  296 ;  Gould  v.  Gapper, 
5  East  345  ;  Tylstra  v.  Charlestown,  i  Bay  382  ;  Washburn  v.  Phillips, 
2  Mete.  296 ;  Ex  parte  Smith,  23  Ala.  94 ;  People  v.  Supervisors,  i 
Hill  201  ;  Reese  v.  Lawless,  4  Bibb.  394,  2  Litt.  Prac.  312. 

But  the  office  of  a  prohibition  is  to  prevent  courts  from  going  be- 
yond their  jurisdiction  in  the  exercise  of  judicial  power;  and  not  of 
ministerial  or^merely  administrative  function ;  and  in  a  case  where 
the  court  errs  on  a  question  of  jurisdiction,  or  in  the  construction  of 
a  statute,  in  the  exercise  of  such  judicial  power  as  an  inferior  court. 
It  vvill  not  lie  to  restrain  a  ministerial  act,  as  the  issuing  of  an  exe- 
cutioh.  or  the  lc\^ing  of  a  tax  to  repair  county  buildings.  Ex  parte 
Braudtlacht,  2  Hill  367;  Clayton  v.  Heidelberg,  9  Sm.  &  M.  623. 
Nor  against  ministerial  officers,  such  as  tax  collectors,  commissioners 
to  locate  a  county  seat,  or  the  like ;  nor  to  restrain  the  issuance  of  a 
commission  by  the  governor.  State  v.  Allen,  2  Ired.  183 ;  People  v. 
Supervisors,  i  Hill  195  ;  Ex  parte  Blackburn,  5  Ark.  21 ;  Gill  v.  Tay- 
lor, 4  McCord,  206.  In  these  cases  there  is  no  question  of  a  conflict 
of  jurisdiction  between  different  courts  in  the  administration  of  jus- 
tice, and  there  are  supposed  to  be  other  adequate  remedies  for  any 
injuries  that  may  be  done.  In  the  case  of  the  King  v.  Justices  of  Dor- 
set, 15  East  594,  the  court  refused  a  prohibition  to  restrain  the  jus- 
tices from  pulling  down  an  old  bridge  for  the  purpose  of  building  a 
new  one  as  constituting  a  nuisance,  and  said  that  such  an  application 
of  the  writ  had  not  been  recognized  in  modern  practice,  where  there 
was  another  remedy  by  indictment,  though  some  ancient  authorities 
were  cited  in  support  of  it;  and  we  have  found  no  authority  in  this 
country  that  can  be  relied  on  for  the  application  of  the  writ  to  a  case 
of  this  kind.  Even  where  a  prohibition  might  be  a  proper  remedy, 
the  granting , oTiFis  su^JecTto  the  discretion  oT  the  court. 

In'Tetherow  v.  Grundy  Co.  Ct.,  9  Mo.  117,  it  was  decided  that  a 
writ  of  error  would  not  lie  from  an  order  of  the  county  court  ap- 
pointing commissioners  to  locate  a  permanent  seat  of  justice,  and  it 
was  distinctly  intimated  as  the  opinion  of  the  court  that  such  a  pro- 
ceeding was  not  a  civil  suit  depending  between  parties ;  that  such  an 
order  was  not  a  final  judgment  on  which  a  writ  of  error  would  lie ; 
and  that  the  plaintiff  was  not  to  be  considered  as  a  party  to  the  pro- 
ceeding as  a  suit ;  but  it  was  said  that  "the  circuit  courts  have  a 
superintending  control  over  the  county  courts,  and  if  they  exceed 
their  powers  or  act  contrary  to  their  duty  in  proceedings  in  which 
writs  of  error  will  not  lie,  there  are  modes  by  which  they  can  be  re- 
strained in  conformity  to  the  usages  and  principles  of  law."  The 
court  did  not  attempt  to  point  out  what  those  remedies  were,  nor  is 


484  WEST    V.    COUNTY    COURT    OF    CLARK    COUNTY.  §    I 

it  necessan-  that  we  should  undertake  to  indicate  them  now.  We 
may  observe  only  that  one  mode  of  exercising  that  control  is  by  the 
writ  of  mandamus  in  cases  where  that  writ  will  lie ;  and  if  the  court 
should  exceed  its  powers  in  the  exercise  of  that  part  of  its  jurisdic- 
tion which  is  judicial  in  its  nature,  a  prohibition  would  unquestion- 
ably be  the  proper  remedy. 

In  respect  of  the  commissiorier  and  contractor,  it  is  apparent  from 
the  authorities  that  this  writ  must  be  refused.  It  is ,j£q.tialhL.(;lear  "tHat 
the  functions  of  the  justices  of  the  count\  court  in  this  matter  per- 
tain to  their  administrative  capacity,  and  not  to  theexefctse  of  jucli- 
cial  power.  The  statute  confers  upon  them  a  limited  and  special  au- 
thority in  proceedings  of  this  natvire.  They  derive  their  whole  power 
from  the  statute.  It  is  conferred  upon  them  as  representing  the  peo- 
ple of  the  county,  whose  agents  they  are  in  this  business.  The  power 
given  is  made  to  depend  upon  the  consent  of  at  least  two  thirds  of 
the  legally  registered  voters  of  the  county,  and  this  consent  is  to  be 
manifested  in  the  mode  prescribed  by  the  act,  and  in  no  other  way. 
It  is  not  imperative  upon  the  court  to  adopt  the  place  selected  by  the 
commissioners,  though  the  title  deeds  be  approved  by  the  judge  of 
the  circuit  court,  unless  they  believe  the  most  suitable  place  has  been 
selected ;  and  this  decision  upon  this  matter,  in  the  exercise  of  the 
discretion  thus  conferred,  is  to  be  evidenced  by  an  order  entered  of 
record ;  and  then  the  place  so  selected  becomes  the  permanent  seat 
of  justice  in  the  county.  This  is  a  direction  as  to  the  exercise  of  a 
power  given  by  the  statute,  and  the  power  must  be  exercised  within 
the  limits  of  the  authority  conferred  and  under  the  conditions  im- 
posed by  the  act.  It  is  plain  that  the  power  given  has  not  been  pur- 
sued ;  the  conditions  have  not  been  complied  with ;  the  consent  of  the 
voters  has  not  been  obtained  in  the  manner  prescribed ;  and  it  must 
follow  that  the  proceedings  were  without  the  authority  of  the  law, 
and  are  therefore  null  and  void. 

A  prohibition  not  being  the  proper  remedy,  the  demurrer  will  be 
sustained  and  the  writ  denied.    The  other  judges  concur. 

See  in  accord  ITomc  Tns.  Co.  v.  Flint.  13  Minn.  244;  People  v.  Super- 
visors, I  Hill  CN.  Y.)  105;  Burch  v.  Hardwicke,  2.3  Grat.  (Va.)  51;  Spring 
Valley,  etc.,  Co.  v.  Bartlett,  63  Cal.  245;  LaCroix  v.  County  Com'rs,  49 
Conn.  591 ;  Hunter  v.  Moore,  30  S.  Car.  394 :  Atkins  v.  Siddons,  66  Ala. 
45,3;  Cody  V.  Lennard  45  Ga.  85;  Casby  v.  Thompson.  42  Mo.  133;  State 
V.  T,aui?lilin,  7  Mo.  App.  529:  People  v.  District  Court.  6  Colo.  534;  Smith 
V.    Whitney,   116  U.    S.    \67. 

Hut  sff  Flemincf  v.  Commissioners,  3T  W.  Va.  608;  Brazie  v.  Fayette 
Co.  Com'rs.  25  W.  Va.  213;  State  v.  Commissioners,  I  Mill  CS.  Car.),  55; 
Huchcncau  v.  House,  4  Utah.  363;  People  v.  Works,  7  Wend.  (N.  Y.) 
4«6;  Talbot  v.  Dent,  9  B.  Men."  (Ky.)   5^6. 


§    I  PROIilUITION,   I.\    GENERAL.  485 

STATE  V.  COMMISSIONERS  OF  ROADS. 
1817.     Constitutional  Court  of  South  Carolina,     i  Mill.  55, 

12  Am.  Dec.  596. 

By  court,  Cheves,  J.  On  the  fourteenth  of  April,  1814,  the  com- 
inissioners  of  roads  for  Christ  Church  Parish,  on  the  application  of 
Dr.  A.  F.  Toomer : 

"Resolved,  That  Dr.  Jervey,  John  White,  and  R.  T.  Morrison,  be 
appointed  a  committee  to  establish  an  old  road  through  Captain 
Barksdale's  plantation,  for  the  benefit  of  Dr.  A.  \\  Toomer."  And 
on  the  fifth  of  August,  1816,  they  agreed  to  the  following  preamble 
and  resolve:  "Whereas  Dr.  A.  V.  Toomer,  having  complained  to 
this  board  that  Captain  Thomas  Earksdale,  by  frequently  extending 
his  fields,  has  turned  him  so  far  out  of  his  way  to  the  public  road  as 
to  render  it  highly  inconvenient  for  him  to  visit  his  neighbors,  or 
pursue  his  public  or  private  business.    Therefore, 

"Resolved,  That  the  committee  fomierly  appointed  be,  and  they 
are  hereby  required  to  examine  the  acts  of  the  legislature,  authoriz- 
ing the  commissioners  to  lay  out  roads,  etc.,  and  report  to  this  board 
at  their  next  meeting."  And  on  the  eighth  of  October,  1816,  they 
agreed  to  the  following  resolve : 

''Resolved,  That  the  old  road,  leading  from  Dr.  Toomer's  to  the 
broad  road,  be  re-established,  and  that  Captain  Barksdale  be  required 
to^TJpen'and  cl'ear  the  same  on  or  before  the  first  of  January  next, 
and  that  tlie  secretary  be  and  is  hereby  required  to  communicate  to 
Captain  Barksdale  the  resolution  of  the  Board." 

In  consequence  of  these  resolutions,  Mr.  Barksdale  filed  a  sugges- 
tion in  the  Court  of  Sessions  for  Charlestown  district,  alleging  among 
other  things,  that  the  road  in  question  was  not  a  road  laid  out  bv 
commissioners  of  the  public  roads,  but  one  established  by  his  ances- 
tors for  their  private  convenience,  and  used  by  all  other  persons  by 
the  courtesy  of  his  ancestors  and  himself ;  that  it  passed  through  his 
fields  and  that  to  continue  it  open  would  be  greatly  injurious  to  him 
and  of  little  benefit  to  the  public  ;  that  there  existed  a  nearer  and  bet- 
ter road  to  the  great  high  road  to  Charlestown  ;  and  that  the  closing 
of  the  road  through  his  plantation  would  only  increase  the  distance 
to  other  parts  of  the  parish  a  quarter  of  a  mile  and  a  little  more. 

The  facts  were  controverted  by  the  commissioners  of  the  roads, 
and  much  contradictory  testimony  was  introduced  through  affidavits 
on  both  sides.  On  the  suggestion  and  testimony  recited,  Mr.  Barks- 
dale, obtained  a  rule  on  the  commissioners  of  the  roads,  to  show 
cause'Why  a  prohibition  should  not  Issue  against  them.  Whereupon, 
in  January  term  last,  Mr.  Justice  Grimke  presiding,  the  circuit  court 
ordered  "the  rule  to  be  discharged,  unless  the  constitutional  court 


486  STATE  V.  COMMISSIOMiKS  OF  KOAUS.  §     I 

should  be  of  opinion  that  the  proceeding  by  prohibition  is  the  regular 
proceeding,  in  which  case  the  prohibition  is  granted,  subject  to  the 
revision  of  the  court,  on  the  legality  and  merits  of  the  case."  From 
this  order,  Mr.  Barksdale  appealed  to  the  Constitutional  Court ;  and 
we  are  now  to  consider,  i.  Whether  this  court  has  gower  tograntji 
prohibition  against  the  commissiohersT"2.  Whether,  IT  iFliave  the 
power,  it  ought  to  grant  it,  under  the  circumstances  of  the  case. 

I.  On  the  first  question  the  counsel  concerned  in  the  case  have 
concurred,  or  at  least  their  difference  of  opinion  was  so  inconsider- 
able that  I  have  been  unable  to  discover  where  it  lay.  They  con- 
curred in  opinion  that  the  court  had  power  to  grant  the  prohibition. 
Notwithstanding  this  agreement  of  adverse  counsel,  it  seems  the 
authority  of  the  court  has  been  doubted  both  at  the  bar  and  on  the 
bench.  The  immediate  grounds  it  is  believed,  on  which  the  doubts 
have  been  entertained,  and  probably  sustained  the  determination  of 
the  judge  who  presided  in  the  circuit  court,  is,  that  the  books  say  a 
prohibition  is  a  writ  issuing  out  of  the  superior  courts,  "directed  to 
the  judges  and  parties  of  an  inferior  coiirt,  commanding  them  to 
cease  from  the  prosecution  of  a  suit,  upon  a  suggestion  that  either 
the  cause  originally,  or  some  collateral  matter  therein,  does  not  be- 
long to  that  jurisdiction,  but  to  the  cognizance  of  soriieotKef "court ;" 
3  Bl.  Com.  112;  and  this  is  certainly  the  language  used  most  invari- 
ably in  the  books.  Indeed,  in  one  it  is  said :  "It  is  now  most  usually 
taken  for  a  writ  which  lieth  for  one  who  is  impleaded  in  the  court 
christian  for  a  cause  belonging  to  the  temporal  jurisdiction ;  Jacob's 
Law  Diet.,  tit.  Prohibition,  5  Vol.  316,  who  cites  Cowell — ^and  hence 
it  is  inferred  that  the  writ  of  prohibition  can  only  be  directed  to  a 
court,  or,  at  most  to  a  body  or  person  exercising  some  judicial  func- 
tion. The  accuracy  of  this  opinion  may,  however,  be  reasonably  dis- 
puted. While  the  principles  in  which  the  writ  appears  to  have  orig- 
inated seem  to  prove  that  it  may  issue  in  other  cases,  precedents  are 
not  wanting  to  show  that  it  has  actually  issued  in  such  cases.  It  is 
said  "the  reason  of  prohibition  in  general  is,  that  they  preserve  the 
right  of  the  king's  crown  and  court,  and  the  quiet  of  the  subject."  5 
Bacon's  Abr.,  tit.  Prohibitions,  p.  647.  And  one  general  ground  of 
])rohibitions  is,  that  though  the  subject  matter  of  suit  is  within  the 
proper  jurisdiction  of  an  inferior  tribunal,  yet  that  in  some  collateral 
or  incidental  matter  it  is  proceeding  contrary  to  the  common  law,  or 
some  statutory  provision.  Thus  it.would  seeni^Jf  we  pursue  these 
])rinciples,  that  the  courts  have  authority'Ty  "this  proceedijig:.„to 
sui)ervise  the  execution  of  the  laws,  not  merely  by  keeping  inferior 
tribunals  within  their  proper  jurisdiction,  but  also  by  enforcing  a 
correct  execution  of  the  laws,  as  well  the  common  as  the  statute  law. 
To  the  generality  of  this  rule,  there  will,  of  course,  be  exceptions 
pointed  out  by  the  nature  and  object  of  this  proceeding.  If.  then, 
the  authorit)-  of  these  courts  be  thus  extensive,  and  sncli  be  the  ob- 


§    I  PROHIBITION,   IN   GENERAL.  487 

jects  of  this  proceeding,  what  reason  can  there  be  to  hmit  ils  opera- 
tion merely  to  the  regulation  of  inferior  courts  ?  Why  should  it  not 
extend  to  other  functionaries  who  are  charged  with  the  execution  of 
the  laws,  and  to  corporate  bodies  whose  existence  and  whose  privi- 
leges are  an  emanation  of  the  sovereign  authority? 

Accordingly,  we  do  find  the  writ  of  prohibition  directed  to  per- 
sons, whose  character  or  function  had  little  or  nothing  of  a 
judicial  nature  in  them.  Thus,  prohibition  has  been  a  common  rerh- 
edy  to  restrain  the  excess  or  abuse  of  visatorial  authority  in  cases 
of  eleemosynary  corporations ;  Woodson,  i  Vol.  472,  473,  479,  483, 
484.  There  is,  it  is  true,  in  the  duty  of  the  visitors  of  these 
institutions,  a  power  to  determine  in  some  cases,  on  the  rights  of 
individuals,  in  relation  to  the  corporation  of  which  they  are  the 
visitors,  but  they  do  this  more  in  the  character  of  private  trustees, 
than  as  public  judges.  They  are  appointed  by  the  founders,  or 
their  authority  results  to  them  as  the  heirs  of  the  founders :  I 
Woodson  474. 

It's  impossible  to  imagine  a  tribunal  less  resembling  those  which 
have  been  usually  and  properly  denominated  courts,  than  would  be 
the  fonim,  if  so  we  may  be  permitted  to  speak,  of  a  visitor  of  one 
of  these  institutions.  Less  of  the  judicial  character,  or  a  more 
shadowy  resemblance  of  judicial  functions,  cannot  be  conceived 
to  exist,  yet  they  are  usually  restrained  by  proceedings  in  prohibi- 
tion, when  they  exceed  or  abuse  their  authority. 

From  this  example  alone,  and  the  cases  which  establish  it  are 
numerous,  it  will  appear  that  prohibitions  are  not  exclusively  directed 
to  courts,  and  that,  if  judicial  functions  in  those  to  whom  they  are 
directed  be  necessary  at  all,  as  their  foundation,  they  need  not  be 
very  extensive  or  very  strongly  marked.  But,  I  am  of  opinion, 
that  in  our  habit  of  thinking,  on  this  subject,  we  have  mistaken 
the  derivative  for  the  original.  The  origin  of  this  proceeding,  as 
we  have  seen  from  the  authorities  quoted,  was  to  secure  the  sover- 
eign rights,  and  preserve  the  public  c|uiet ;  it  was  an  emanative  of  the 
great  executive  authority  of  the  king,  delegated  to  his  courts,  and 
particularly  to  the  king's  bench:  i  Bl.  Com.  481,  482;  one  of  his 
prerogative  writs,  necessary  to  perfect  the  administration  of  his  jus- 
tice, and  the  control  of  subordinate  functionaries  and  authorities. 
By  the  writ  of  mandamus  he  commanded  what  ought  to  be  done, 
and  by  the  writ  of  prohibition  he  forbade  what  ought  not  to  be  done, 
in  cases  where  the  general  authority  was  not  denied,  or  not  in- 
tended to  be  resumed.  The  writ  of  quo  zvarranto  on  the  other 
hand  was  designed  to  restrain  and  punish  an  original  usurpation, 
or  to  seize  again  into  the  hands  of  the  crown  the  franchise,  or  au- 
thority in  controversy,  because  it  had  been  forfeited.  It  is  not 
intended  to  say  that  the  writ  of  quo  zvarranto  may  not  be  used  to 
try  the  validity  of  a  certain  franchise,  or  authority,  at  the  instance 


488  STATE  V.  COMMISSIONERS  OF  ROADS.  §     I 

of  an  individual,  where  the  attorney  shall  clothe  the  proceeding 
with  the  authority  of  the  state ;  but  it  will,  neveretheless,  not  be  an 
adequate  remedy  for  the  citizen  if  it  were  for  no  other  reason  than 
that  he  will  hold  it  at  the  will  of  the  attorney  general.  Besides,  as  the 
object  of  the  quo  zvarranto  is  always  the  destruction  of  the  franchise, 
or  authority,  it  will  not  embrace  a  case  where  such  judgment  ought 
not  to  be  pronounced;  as,  for  example,  where  there  has  been  an 
actual,  but  an  unintentional  excess  of  a  chartered  privilege,  the 
judgment  would  not  surely  be,  that  it  should  be  seized;  yet  the 
indiviual  would  be  entitled  to  relief.  Again,  where  a  by-law  should 
unquestionably  be  correct  in  its  terms  and  provisions,  but  should 
be  erroneously  applied  or  executed  by  the  subordinate  officers  of  the 
corporation,  there  could  not  be  a  judgment  of  forfeiture,  but  the  in- 
dividual aggrieved  would  be  entitled  to  a  remedy. 

Though  the  writ  of  quo  zvarranto  may  sometimes  supply  a 
private  remedy,  it  was  designed  for  a  public  prosecution,  and  will 
not,  in  practice,  be  found  to  supersede  the  utility  or  necessity  of  the 
writ  of  prohibition.  From  this  remark  will  be  excepted  cases  under 
the  statute  9  Anne,  Ch.  20,  where  the  writ  of  quo  zvarranto  was 
granted  expressly,  and  is  peculiarly  proper  to  afiford  private  relief, 
it  being  thus  evident  that  the  proceeding  by  prohibition  in  principle 
is  not  confined  to  the  restraint  of  inferior  judicial  tribunals,  let  us 
see  whether  there  are  not  precedents  to  the  same  efifect.  In  Fitz- 
herbert's  Natura  Brcz'inm,  p.  21,  it  is  said,  that  tenant  by  fealty, 
and  certain  rent  shall,  in  the  case  there  stated,  have  the  writ  of 
ne  injnste  z'e.res  directed  to  the  lord,  commanding  him  not  to  dis- 
train for  other  services  than  of  right  he  ought  to  do ;  and  it  is 
said  that  this  writ  in  itself  is  a  prohibition  to  the  lord ;  and  again, 
that  "the  process  in  this  writ  is  attachment,  prohibition,  etc. ;  and 
though  it  be  called  the  writ  of  ne  in  juste  z'excs  it  probably  received 
tliis  name  because  it  was  sued  out  of  the  chancery  as  a  special  writ, 
at  a  time  when  original  writs  to  suit  each  particular  case  were  ob- 
tained with  almost  as  much  facility  as  pleadings  are  now  adapted 
to  particular  cases.  The  origin  which  Fitzherbert  assigns  to  it 
proves  this ;  he  says :  "This  writ  is  founded  upon  the  statute  of 
.Magna  Charta,  c.  10,  which  willcth  that  no  man  be  distrained  to 
do  greater  service  for  a  knight's  fee,  nor  for  any  other  freehold, 
than  is  therefor  due."  If  a  like  founrjation  for  the  application 
of  the  writ  of  prohibition  be  desired,  it  will  be  found  in  many  cases 
in  the  second  section  of  the  ninth  article  of  the  constitution  of 
this  state,  though  it  is  obvious  that  this  provision  of  Magna  Charta 
did  no  more  than  give  a  specification  to  the  right  of  the  subject, 
and  flid  not  confer  the  authority  of  the  court  to  grant  it,  which 
existed  before  under  its  general  powers. 

In  Fitzhcr1)ert's  Nat.  P>rcv.,  p.  70,  it  is  said:  "A  person  who  is 
sued   in   the  spiritual   court  may  purchase   a   writ,   which   is  called 


§    I  PROHIBITION,   IN   GENERAL.  489 

■indicavit;  which  writ  is  a  prohibition,"  etc.  This  last  authority  is 
cited  merely  to  show  the  special  names  which  writs  of  the  same 
nature  often  assumed  as  they  happen  to  be  adapted  to  particular 
cases.  So  in  the  writ  of  waste,  at  the  common  law,  Fitzherbert's 
Nat.  Brev.  126,  those  who  committed  waste  were  punishable  by 
prohibition  and  attachment.  In  the  case  of  Jefferson  v.  Bishop  of 
Durham,  i  Bos.  &  P.  120,  121,  Chief  Justice  Eyre  says:  "At  com- 
mon law  the  proceeding  in  waste  was  by  writ  of  prohibition  from  the 
court  of  chancery,  which  was  considered  as  the  foundation  of  a 
suit  between  the  party  suffering  by  the  waste  and  the  party  com- 
mitting it.  If  that  writ  was  obeyed,  the  ends  of  justice  were  an- 
swered ;  but  if  that  was  not  obeyed,  and  an  alias  and  plnries 
produced  no  effect,  then  came  the  original  writ  of  an  attachment, 
out  of  chancery,  returnable  in  court  of  common  law,  which  was 
considered  as  the  original  writ  of  the  court.  The  form  of  the  writ 
shows  the  nature  of  it.  It  was  the  original  writ  of  attachment  which 
was,  and  is,  the  foundation  of  all  proceedings  in  prohibition." 

Thus  we  see  very  clearly  that  proceedings  in  prohibitions  were 
applicable  to  other  cases  than  those  in  which  inferior  tribunals 
were  to  be  restrained.  But  notwithstanding  these  authorities,  Fitz- 
herbert,  Nat.  Brev.  tit.  Prohibition,  like  the  authorities  w'ho  have 
followed  him  speaks  of  this  writ  only  as  one  directed  to  inferior 
judicial  tribunals.  We  must,  then,  consider  the  writ  of  prohibi- 
tion, originally  and  peculiarly  so-called  in  the  nomenclature  of  the 
chancery,  as  distinguished  from  other  like  writs,  and  from  other 
proceedings  by  prohibition.  In  this  way  the  authorities  may  be 
reconciled  and  made  intelligible ;  and  we  will  be  authorized  to 
apply  the  writ  according,  to  the  principles  and  commensurately 
with  the  purposes  for  which  it  appears  to  have  been  designed. 
Writs  of  waste  and  writs  of  ne  injiiste  vexes  and  other  like  writs, 
in  which  the  proceedings  were  by  prohibition,  have  indeed,  long 
since  ceased  in  our  practice ;  and  these  examples,  as  precedents 
in  point,  would  be  absurd  and  ridiculous :  nor  can  we  find  the 
writ  of  prohibition  issuing  from  the  ofRcina  hrcviinn,  directed 
to  commissioners  of  roads.  But  it  is  the  peculiar  and  admirable 
property  of  the  common  law,  that  it  authorizes  its  dispensers 
to  frame  their  judgments  upon  the  analogy  of  cases  and  principles 
to  the  new  and  continually  varying  circumstances,  and  to  the  present 
interests  and  conveniences  of  the  country.  We  should  lose  the  spirit 
and  enjoy  nothing  but  the  black  letter  of  the  common  law,  if, 
under  the  circumstances  of  our  country,  so  entirely  different  from 
England,  at  any  period,  we  should  not  allow  ourselves  to  apply 
its  remedies  and  its  processes  with  some  little  variation. 

The  English  courts  have  themselves  done  this  on  the  very  subjects 
we  are  considering,  for  we  should  in  vain  seek  in  the  ancient  reposi- 
tories of  writs  for  a  prohibition,  in  some  of  the  cases  which  the 
practice  of  our  own  times  has  furnished.  This  proceeding  in  modern 


490  WILKINSON    V.    HOKE,    JUDGE.  §    I 

times,  seems  to  have  fallen  into  disuse  in  controversies  between  indi- 
viduals, as  in  cases  of  waste  and  the  like ;  and  its  use,  on  the  other 
hand,  has  been  extended  to  public  functionaries  and  corporate  bodies, 
as  we  have  seen  by  the  examples  quoted ;  and  it  would  seem,  is 
applicable  to  all  such  cases  where  the  object  is  not  the  destruction 
of  the  franchise  or  authority  controverted.  Now,  to  apply  this 
reasoning  and  these  authorities  to  the  case  before  us. 

The  commissioners  of  the  roads  are  public  functionaries,  invested 
with  judicial  powers.  They  decide  between  citizen  and  citizen,  in 
relation  to  the  freehold  and  transfer,  without  compensation,  at 
their  discretion,  the  property  of  individuals,  to  the  uses  of  the  public. 
They  cite  parties  before  them,  hear  witnesses,  give  judgments,  and 
enforce  their  judgments  by  high  penalties.  They  seem  to  be  much 
more  clearly  and  properly  objects  of  these  proceedings  than  visitors 
of  eleemosynary  corporations;  and  I  am  quite  satisfied  that  the  pxp- 
ceeding  by  prohibition  is  a  proper  proceeding  in  this  case. 

2.  The  second  question  depends  principally  upon  the  fact,  whether 
this  be  an  old  road,  which  was  originally  laid  out  by  the  commis- 
sioners of  the  roads.  The  authority  under  which  the  commissioners 
in  this  case  have  acted,  is  the  thirteenth  section  of  the  act,  entitled 
"an  act  to  alter  and  amend  the  act  respecting  the  high  roads 
and  bridges,"  etc.  Pub.  Laws  446.  On  this  question  of  fact  there 
is  much  contradictory  testimony,  on  which  the  court  would  find  it 
difficult  to  decide ;  and  it  is  a  question  peculiarly  proper  for  the 
decision  of  a  jury  of  the  vicinage.  I  am,  therefore,  of  the  opinion 
that  the  plaintiff  should  declare  in  prolTibitibn  in  order  Thaf "The 
question  may  be  submitted  'to^~a' jury.  A  majority  of  my  brethren 
at  least,  as  to  the  points  decided,  concur  in  this  opinion;  the  judg- 
ment of  the  court,  therefore,  is,  that  the  order  of  the  circuit  court 
be  reversed,  that  the  rule  for  a  prohibition  be  made  absolute,  and 
that  the  plaintifif  do  declare  in  prohibition:     I  Saund.  136,  note  i. 

(Dissenting  opinion  on  another  point  omitted.) 


7.     Excess  or  defect. of  jurisdiction. 

WILKINSON  v.  TIOKK.  JUDGE. 

f^'M-     Sui'RR.ME  Coi'Ri  oi-  /\im'i:ai.s  oi-  West  Virginia.     34  W.  Va. 
403 ;  19  S.  E.  520. 

Hor>T,  J. — On  the  lliirty-fu-st  day  of  January,  r8()3.  the  plaintifif 
Can  infant  sumg  1)y  his  next  friend)  brought  in  the  circuit  court  of 
Taylor  ronnty,  an  action  of  trespass  on  the  case  against  the  de- 
fendant,  Asliby   J.   Wilkinson,    for   assault   and   battery,   laying  his 


§    I  PROHIBITION,   IN   GENERAL.  49I 

damages  at  $3,000.     The  defendant  appeared  and  entered  the  plea 
"oTnot  guilty ;  and  at  the  September  term  the  case  was  tried  by  jury, 
and  a  verdict  of  $25  was  found  for  the  plaintiff.    Upon  this  verdict 
the  court  rendered  judgment  that  plaintiff. re-COKer  the  damages  found 
by  the   jury,  and  his   costs,  but  did  not  enter  of  record  that  the 
object  of  the  action  Was  to  try  a  right,  besides  the  mere  right  to  re- 
cover'  damages  for  the  trespass,  nor  enter  of  record  that  the  tres- 
pass of  grievance  was  willful  or  malicious,  as  must  be  done  where 
the  verdict  be  found  for  the  plaintiff  for  less  damages  than  $50, 
and  for  which  a  personal  action  might  be  brought,  and  prosecuted  to 
jtJ"*!tgmerit  in  a  justices'  court.     See  Code,  c.    138,   §   6.     In  this 
ca?e7Suit  could  have  been  brought  in  a  justice's  court,  and  a  judgment 
rendered  to  the  extent  of  $300  (12  times  the  amount  herein  found) 
and  in  such  cases  the  amount  found  furnishes  the  true  criterion.    See 
code,  c.  50,  §  8-11.     The  judgment  entered  against  defendant  for 
costs  exceeded  the  legitimafe~po"wefs~of  the~court,"ho  fact  appearing 
on  the  record  to  7i^isl:Tfyit7  as  must  appear  by  record  in  such  cases, 
wHere  such  court  exceeds  its  legitimate  powers,  although,  having 
furisdiction  of  the  subject  matter  in  controversy,  a  writ  of  prohi- 
"^Ttiori'TTes^as  a  matter  of  right ;  determined,  not  by  the  amount  in 
contf6vefs}%'Biit  by  the  excess  of  power.    See  section  i,  c.  no,  Code 
and  section  3,  art.  8,  Const.  (Code,  (Ed.  1891)  p.  37).     And,  the 
term  being  ended,  the  matter  has  passed  into  a  thing  finally  ad- 
judged, and  is  therefore  beyond  the  power  of  the  court  to  alter 
or  amend.     And  if,  on  motion  to  quash  the  present  execution,  the 
court  were  to  quash   the   same,   as  in  a   proper  case,   it  has  the 
power  to  do,  we  are,  in  this  case,  to  take  it  for  granted  that  it 
would  not  have  done  so,  from  the  answer  and  return  made  to  the 
rule  awarded  to   show  cause  why  the  writ  of  prohibition  should 
not  issue.     But,   if   we  are  not  mistaken   in  the  views   expressed 
above,  that  would  be  immaterial,  for  the  writ  goes  as  a  matter  of 
right,  where  the  court  exceeds  its  legitimate  powers ;  and  the  statute 
expressly  takes   away   such   power  not   simply   in   the  case  where 
such  trespass  may  have  been  in  fact  willful  and  malicious,  but  in  the 
case  where  such  fact  is  not  entered  of  record,  taking  for  granted 
that,  for  the  object  here  had  in  view,  that  which  does  not  appear 
by  the  record  does  not  exist.     In  such  a  case,  a  judgment  for  the 
costs  is  by  the  statute,  prohibited  directly  and  positively.     "Costs 
were  not  recoverable  at  common  law.     It  is  by  virtue  of  the  statute, 
alone,  that  any  judgment  for  costs,  eo  nomine,  can  be  rendered  in 
favor  of  either  party."     West  v.  Ferguson   (1861)    16  Grat.  270; 
3  Bl,  Com.  399  (Hammond's  ed.)  ;  3  Comyn  223;  3  Co.  Litt,  11, 
note;  Pilfold's  case,  10  Coke  116.     The  first  law  giving  costs  to  a 
defendant  is  said  to  be  the  statute  of  Marlebridge  (1268)  c.  6.    Our 
statute  (§  8,  c.  138)  which  gives  costs  generally,  excepts  this  case 
expressly,  as  one  where  it  is  otherwise  provided  by  its  direct  and 


492         MIXES  d'or  de  quartz  societe  v.  superior  court.         §  r 

partial  prohibition;  not  that  a  judgment  for  costs  in  the  given  case 
may  be  rendered,  unless  objections  be  made,  but  it  is  peremptory  that 
the__2laintiff  for  whom  a  verdict  is  found  for  less  damages  than 
$50,  shall  not  recover,  in  respect  to  such  verdict,  any  costs,  unless  the 
court  enter  of  record  that  the  said  grievance  or  trespass  was  willful 
or  malicious.  It  is  true  that  the  judgment  has  been  entered,  and 
is  now  final,  and  that  the  circuit  judge  is  not  a  ministerial 
officer  of  his '  court ;  yet  it  appears  that  the  execution  issued  has 
not  been  satisfied  or  returned,  and  the  circuit  court  and  the  judge  in 
vacation,  has  control  over  its  process,  both  mesne  and  final,  and  the 
ministerial  officers  of  the  court  are  but  parts  of  the  machinery. 
IngersoU  v.  Buchannon,  i  W.  Va.  181  ;  2  Spel.  Extr.  Rem.  §  1720; 
Hutson  V.  Lowry,  2  Va.  Cas.  42 ;  Bodley  v.  Archibald,  33  W.  Va, 
229,  10  S.  E.  392.  In  such  a  case  a  writ  of  prohibition  is  a  proper 
proceeding  to  arrest  the  execution  of  a  judgment  rendered  without 
authority  (West  v.  Ferguson,  16  Grat.  270;)  for  no  writ  of  error 
or  other  adequate  remedy,  is  available  to  aflford  the  redress  to 
which  the  party  is  entitled  for  such  excess  of  power.  "It  is  the 
means  by  which  a  superior  tribunal  exercises  its  superintendence 
over  the  inferior,  and  keeps  it  within  the  limits  of  its  rightful  juris- 
diction" (High  Ex.  Leg.  Rem.  §  768,)  and  the  constitution  gives 
this  court  original  jurisdiction  (art.  8,  §  3).  Here  there  is  no  practi- 
cal difficulty,  for  the  judgment  for  costs  is  distinct,  from  the  main 
judgment,  and  is  stated  separately  in  the  execution.  For  the  pro- 
ceeding in  such  cases  see  Miller  v.  Marshall,  I  Va.  Cas.  158;  Mayo 
V.  James,  12  Grat.  17,  26;  and  §§  i,  Ch.  no,  code.  On  the  subject 
generally  see  Brazie  v.  Commissioners  25  W.  Va.  213;  Fleming  v. 
Guthrie,  23  W.  Va.  i,  9  S.  E.  23:  Fleming  v.  Commissioners,  31 
W.  Va.  608,  8  S.  E.  267;  County  Court  v.  Boreman,  34  W.  Va. 
87.  II  S.  E.  747;  McGoniha  v.  Guthrie,  21  W.  Va. 
134;  Buskirk  v.  Judge,  7  W.  Va.  91  ;  County  Court  v.  Armstrong, 
34  W.  Va.  326;  12  S.  E.  488;  Alderson  v.  Commissioners,  31  W.  Va. 
633;  8  S.  E.  274;  Manufacturing  Co.  v.  Carroll,  30  W.  Va.  534,  4 
S.  E.  782.  For  the  reason  given  we  are  of  opinion,  that  the  mat- 
ters alleged  in  the  answer  and  return  to  the  rule  are  insufficient, 
and  that  the  writ  should  be  awarded  as  prayed  for. 


MINES  D'OR  DK  QUARTZ  MOUNTAIN  SOCIETE 
ANONYME  ET  AL.  V.  SUPERIOR  COURT  OF 
FRESNO   CO. 

1891.     Sui'RE.MK  Court  or  Calitornia.     91  Cal.  loi  ;  27  Pac.  532. 

DrdlAVEN,  J. — ThcL  pctjj^jucrs  are  non-rcsidcnts  of  the  state  of 
Califririiia,  and  an^action  agamsttTicm' 'is  pending  in  the  suj^crior 
court  of  ['rcsno  County,  in  which  that  court  made  an  o^rder  directing 


§    I  PROniniTION,    IN    GENERAL.  493 

that  the  summons  therein  be  served  upon  the  petitioners  by  pub- 
lication. Thereafter  the  petitioners  appeared  specially  in  the  action, 
and  moved  to  vacate  and  set  aside  that  order  upon  the  alleged 
i;rf)und  that  the  action  is  in  personam,  and  therefore  not  one  in 
which  summons  by  publication  is  authorized.  The  motion  was 
denied.  After  this  petitioners  again  entered  a  special  appearance  in 
satd  action,  and  moved  for  an  order  staying  all  proceedings  therein, 
until  the  summons  should  be  personally  served  upon  petitioners,  or 
until  such  time  as  they  should  enter  their  general  appearance.  This 
motion  was  also  denied  and  the  petitioners  now  ask  that  a  writ 
of  prohibition  issue  out  of  this  court  commanding  said  superior 
(JSTart"^  refrain  from  further  proceeding  in  said  action  until  peti- 
T:ion'efs"shall  enter  their  general  appearance  therein,  or  are  personally 
served  with  the  summons  in  the  action. 

We  do  not  deem  it  either  necessary  or  proper  to  determine  at 
this  time  whether  the  action  now  pending  against  petitioner  in  the 
superior  court  is  one  in  which  the  summons  can  legally  be  served 
by  publication.  That  court  has  jurisdiction  of  the  subject  matter 
of  the  action,  and  whether  it  has  jurisdiction  over  the  persons  of 
"peTttTorrers  is  a  question  which  it  must  determine  for  itself  before 
entering  judgment  in  the  action,  and  which  it  has  the  same  authority 
to  pass  upon  as  any  other  question  of  law  or  fact  which  may 
arise  during  its  progress,  and,  if  in  the  decision  error  shall  be 
committed  to  the  prejudice  of  petitioners,  the  law  afifords  them  a 
plain,  speedy  and  adequate  remedy  by  an  appeal  from  any  judgment 
which  may  be  entered  against  them.  Agassiz  v.  Superior  Court, 
2y  Pac.  Rep.  49,  and  cases  cited.    Application  for  writ  denied. 


QUIMBO  APPO  V.  PEOPLE. 
i860.     Court  of  Appeals  of  New  York.     20  N.  Y.  531. 

Writ,  of  error  to  the  Supreme  Court.     Quimbo  Appo  was  tried 

and  convicted  of  murder,   and   sentenced  to  be   executed  therefor, 

by  a  court  of  oyer  and  terminer  held  in  and  for  the  city  and  count}'* 

of  New  York,  in  April,  1859.     The  court  adjourned  sine  die  on  the 

1 6th  of  June  following: 

On  the  first  Monday  of  October,  in  the  same  year,  a  court  of  oyer 
and  terminer  was  hekl  in  and  for  the  same  city  and^  county ,"before 
"Mr.  "Justice  Roosevelt,  and  on  the  17th  of  October,  Appo,  made 
an  application  to  the  last  mentioned  court  to  set  aside  his  convic- 
ftotr~iand  sentence  and  grant  him  a  new  trial;  affidavits  of  injustice 
done  him  on  his  trial  and  of  newly  discovered  evidence,  etc.,  were 
filed  with  the  motion. 


494  QUIMBO  APPO  V.  PEOPLE.  §    I 

The  district  court  denied  the  power  of  the  court  to  entertain 
or  grant  such  a  motion  and  declined  to  answer  it  on  the^  merits. 
The  court  affirmed  its  power  and  announced  its  intention  to  grant 
the  motion.  The  district  attorney  thereupon  sued  out  an  alterna- 
tive writ  of  prohibition,  addressed  to  Appo  and  the  court,  forbidding 
the  exercise  of  this  jurisdiction.  The  writ  was  returnable  at  the 
general  term  of  the  supreme  court  on  the  first  Monday  of  December 
1859.  On  the  return  day,  the  court,  on  argument,  rendered  judg- 
ment, awarding  a  prohibition  absolute,  from  which  judgment  Appo 
brought  error  to  this  court. 

The  opinion  of  the  court  was  delivered  by 

Selden,  J. — The  first  question  to  be  considered  is,  whether  the 
writ  of  prohibition  was  the  proper  remedy,  assuming  that  the  court  of 
oyer  and  terminer  had  no  authority  to  grant  a  new  trial  upon  the 
merits  after  conviction  and  sentence  for  the  crime  of  murder. 

The  office  of  this  writ  is,  to  restrain  subordinate  courts  and 
inferior  judicial  tribunals  of  every  kind  from  exceeding  their  juris- 
diction. It  is  an  ancient  and  valuable  writ,  and  one  the  use  of  which 
in  all  proper  cases  should  be  upheld  and  encouraged,  as  it  is  im- 
portant to  the  due  and  regular  administration  of  justice  that  each 
tribunal  should  confine  itself  to  the  exercise  of  those  powers,  with 
which,  under  the  constitution  and  laws  of  this  state,  it  has  been 
intrusted. 

But  it  is  said  that  when  the  inferior  court  or  tribunal  has  jurisdic- 
tion of  the  action,  or  of  the  subject  matter  before  it,  any  error 
in  the  exercise  of  that  jurisdiction  can  neither  be  corrected  nor 
prevented  by  a  writ  of  prohibition. 

It  is  true  that  the  most  frequent  occasions  for  the  use  of  the 
writ  are  where  a  sul3ordinate  tribunal  assumes  to  entertain  some 
cause  or  proceeding  over  which  it  has  no  control.  But  the  necessity 
for  the  writ  is  the  same  where,  in  a  matter  of  which  such  tribunal  has 
jurisdiction,  it  goes  beyond  its  legitimate  ]>owers;  and  the  authori- 
ties show  that  the  writ  is  equally  applicable  to  such  a  case.  Mr. 
Jacob,  in  treating  of  this  writ,  after  saying  that  it  may  issue  to 
inferior  courts  of  every  description,  whether  ecclesiastical,  temporal, 
military  or  maritime,  whenever  they  attempt  to  take  cognizance  of 
causes  over  which  they  have  no  jurisdiction,  adds :  "or,  if,  in  handling 
matters  clearly  within  their  cognizance,  they  transgress  the  bounds 
I-rescribcd  to  them  by  the  laws  of  England,  as  where  they  re- 
quire two  witnesses  to  prove  the  payment  of  a  legacy."  (Jac.  Law 
^')irt.  tit.  ProhiJjition.) 

Tn  the  case  of  Darby  v.  Cosens  Ci  Term  "R.  552)  the  defendant 
who  was  the  vicar  of  Parish  of  Long  Burton,  had  sued  Darby 
in  an  crrlpsiastical  court  for  tithes,  that  being  an  action  appropriate 
to  tlic  jurisdiction  of  that  court;  1)ut  the  defendant  having  set  tip  a 
modus  by  way  of  defense,  an  issue  was  presented  which  the  eccle- 


§    I  PROHIBITION,   IN   GENERAL.  495 

siastical  court  had  no  authority  to  try — still,  as  it  assumed  to  pro- 
ceed with  the  case,  upon  application  to  the  court  of  king's  bench 
a  writ  of  prohibition  was  issued. 

The  precise  objection  made  here  was  taken  in  the  case  of  Leman 
V.  Goulty,  (3  Term  R.  3)  where  certain  church  wardens  were 
cited  in  the  bishop's  court  to  exhibit  on  oath  an  account  of  the 
moneys  received  and  paid  by  them.  Objections  being  made  to 
one  or  two  items  of  the  account,  the  bishop  required  them  to  pay 
a  certain  amount,  and  upon  their  refusing  was  proceeding  still  fur- 
ther with  the  case  when  a  rule  was  obtained  in  the  court  of  king's 
bench  to  show  cause  why  a  writ  of.  prohibition  should  not  issue ; 
and  the  counsel  in  showing  cause  insisted  that  as  the  Bishop's  court 
had  original  jurisdiction  of  the  cause,  the  error  should  be  corrected 
upon  appeal,  and  was  not  a  ground  for  a  writ  of  prohibition ; 
but  the  court  allowed  the  writ  and  Lord  Kenyon  admitted  that 
for  a  mere  error  in  giving  judgment  which  the  court  had  power 
to  render,  the  writ  would  not  lie,  and  said :  "Now  in  this  case,  with 
respect  to  the  compelling  of  a  production  of  the  church  warden's 
accounts,  the  spiritual  court  had  exclusive  jurisdiction ;  but  there 
their  authority  ceases,  and  everything  which  they  did  afterwards 
was  an  excess  of  jurisdiction  for  which  a  prohibition  ought  to  be 
granted." 

These  cases  prove  that  the  writ  lies  to  prevent  the  exercise 
of  any  unauthorized  power,  in  a  cause  or  proceeding  of  which  the 
subordinate  tribunal  has  jurisdiction,  no  less  than  when  the  entire 
cause  is  without  its  jurisdiction.  The  broad  remedial  nature  of  this 
writ  is  shown  by  the  brief  statement  of  a  case  by  Fitzherbert. 
In  stating  the  various  cases  in  which  the  writ  will  lie,  he  says :  "x\nd 
if  a  man  be  sued  in  the  spiritual  court,  and  the  judges  there 
will  not  grant  unto  the  defendant  the  copy  of  the  libel,  then  he 
shall  have  a  prohibition,  directed  unto  them  for  a  surcease,"  etc.. 
until  they  have  delivered  the  copy  of  the  libel,  according  to  the  stat- 
ute made  Anno  2  H.  5.     (F.  N.  B.  Title  Prohibition.) 

This  shows  that  the  icrit  was  never  governed  by  any  narroiv  tech- 
nical rules,  but  -a-as  resoiiec!  to  as  a  conzmieni  mode  of  exercising 
a:  wfrofesoine  control  over  inferior  tribunals.  The  scope  of  this 
rernedy "ought  not  I  think,  to  be  abridged,  as  it  is  far  better 
to  prevent  the  exercise  of  an  unauthorized  power  than  to  be  driven 
to  the  necessity  of  correcting  the  error  after  it  is  committed.  I 
have  no  hesitation  therefore,  in  holding  that  this  was  a  proper 
case  for  the  use  of  the  writ,  if  the  supreme  court  was  right  in  the 
conclusion  to  which  it  arrived  at  the  general  term.     *     *     * 

(The  court  held  that  the  oyer  and  terminer  in  the  several 
counties  of  the  state  is  a  continuous  and  permanent  court  and  its 
successive  sessions  are  terms  of  the  same  and  not  distinct  tribunals. 


496  BUTLER  V.   WILLIAMS,  JUDGE.  §     I 

That  said  court  has  no  power  to  grant  a  motion  for  a  new  trial, 
upon  the  merits  after  the  conviction  for  a  felony.) 

Opinions,  Clark,  J.  (concurring)  and  Bacon,  J  (dissenting),  are 
omitted. 


STATE  EX  REL.  BUTLER  v.  WILLIAMS,  JUDGE. 
1887.     Supreme  Court  of  Arkansas.     48  Ark.  227;  2  S.  W.  843. 

Petition  for  prohibition. 

Smith,  J. — On  the  fourth  of  August,  1885,  in  Desha  circuit 
court,  the  cause  of  J.  W.  Whitehill,  plaintiff,  against  J.  R.  Butler, 
defendant,  was  tried  before  the  Hon.  John  A.  Williams,  circuit  judge, 
and  a  jury  and  a  verdict  and  judgment  were  given  for  the  defend- 
ant. On  the  sixth  of  the  same  month  the  plaintiff  moved  for  a  new 
trial.  This  motion  had  not  been  disposed  of  when  the  court  ad- 
journed over  until  the  eighth  of  December  following.  On  the  day 
last  mentioned  the  circuit  judge  was  not  in  attendance,  being  engaged 
in  holding  the  Jefferson  circuit  court.  On  the  ninth  of  December 
a  special  judge  was  elected,  who  adjourned  the  court  over,  from  time 
to  time,  until  the  23d  of  January  1886,  when  the  regular  judge  ap- 
peared, set  aside  the  judgment  previously  entered  in  the  abcs^e  en- 
titled'cause,  and  ordered  another  trial.  At  a  subsequent  term  the 
defendant  in  the  action  moved  the  court  to  strike  the  cause  out  of 
the  docket  upon  a  suggestion  that  the  judgment  had  become  final 
before  the  court  undertook  to  set  the  same  aside.  This  motion 
was  denied.  The  defendant  in  that  action  now  prays  the  writ  of 
prohibition  to  prevent  the  circuit  judge  from  taking  further  juris- 
diction of  the  cause ;  and  the  question  is  whether  the  Desha  circuit 
court  was  legally  in  session  on  the  twenty-third  of  January,  1886. 

It  is  not  the  meeting  of  the  judge  and  officers  of  the  court  at  the 
county  seat  that  constitutes  a  court,  but  that  meeting  must  he  at  a 
lime  authorized  by  laiv.  Brumley  v.  State,  20  Ark.  yy ;  Rx  parte 
Osborn,  24  Ark.  470.  The  terms  of  the  circuit  court  are  prescribed 
by  statute.  It  is  provided,  however,  that  "special  adjourned  sessions 
of  any  court  may  be  held  in  continuation  of  the  regular  term,  upon 
its  being  ordered  by  the  judge  or  court  in  term  time,  and  entered 
by  the  clerk  on  the' record."  Mansf.  Dig.  §§1476,  1481.  There  is 
no  such  thing  known  to  our  laws  as  two  circuit  courts  held  in  the 
same  circuit  at  the  same  time,  one  presided  over  by  the  regular 
judge,  anrl  the  other  l)y  a  special  judge.  Suitors  are  entitled  to 
have     their    causes     tried    before    the    circuit    judge,    unless    he 


^     I  l'R(JllIi5rnON^   IN    GENERAL.  497 

is  disquaJified,  or  unable  to  preside  from  causes  beyond 
his  control.  It  was  lawful  for  the  Desha  circuit  court  to  ad- 
journ to  a  distanTBay~;~but  "when  that  day  arrived  and  he  was  de- 
tained  T}Tis  judicial  duties  in  another  county  of  his  circuit,  the 
a'cljourned' session  necessarily  failed ;  for  there  is  no  power  to  supply 
his  place  temporarily,  by  a  special  election  by  the  attorneys  in  at- 
tendance,— his  absence  for  this  cause  not  being  such  an  inability 
to  continue  to  hold  the  court  as  is  contemplated  by  section  21  of 
article  7  of  the  constitution  of  1874.  We  are  also  inclined  to 
think  that,  if  the  circuit  court  of  jefiferson  county  had  not  been 
in  session,  the  adjourned  session  would  have  failed  for  want 
of  a  judge,  the  court  not  having  been  organized  on  the  day  to 
which  the  adjournment  was  had  by  the  election  of  a  special  judge. 
But  this  was  not  a  new  term  but  a  continuation  of  the  old  one.  But 
on  this  point  it  is  not  necessary  to  express  any  decided  opinion. 
Prohibition  is  an  extraordinary  remedy,  and  the  writ  will  not  be 
granted  unless  the  defendant  has  objected  to  the  jurisdiction  of  the 
inferior  court,  and  his  objection  has  been  overruled.  Ex  parte 
City  of  Little  Rock,  26  Ark.  52,  and  cases  cited ;  Smith  v.  Whitney, 
116  U.  S.  167,  6  Sup.  Ct.  Rep.  570.  We- regard  the  motion  by_.the 
defendant  to  dismiss  the  cause  for  want  of  jurisdiction  as  satisfying 
this  requirement.     It  was  in  fact  all  he  could  do.     Let  the  writ  go. 

See  also  State  v.  Laughlin,  9  Mo.  App.  486;  People  v.  Circuit  Court, 
173  111.  272;  State  V.  Allen,  47  La.  Ann.  1600:  Turner  v.  Mayor,  etc.,  of 
Forsythe,  78  Ga.  683 ;  Pacific,  etc.,  R.  Co.  v.  Superior  Ct.,  79  Cal.  103 ; 
Hanger   v.    Keating,   26   Ark.   51. 

But  see  State  v.  Wilcox,  24  Minn.   143;   State  v.  Aloe,   152  Mo.  466. 


PEOPLE  EX  REL.   SPRAGUE  et  al.  v.  FITZGERALD  et  al. 

1897.     Supreme  Court  of  New  York,  Appellate  Division. 
15  App.  Div.  539;  44  N.  Y.  Supp.  556. 

Appeal  from  surrogate's  court,  Richmond  county. 

Prohibition  by  Edward  Spraguejmd  another  as  admims.tr3tors^Qf 
David,H.jQiirne_ay,  deceased,  against  TKonias  W.  Fitzgerald,  district 
attorneyjand-actin^  surrogate  q_f  the  county  of  Richmond,  and  Mary 
,L.  Englebrecht^.-.  From  an  order  directing  a  writ  of  prohibition  to 
issue  restraining  and  prohibiting  said  Fitzgerald,  as  acting  surrogate, 
from  taking  ^iny  proceedings  or  issuing  any  order  removing  relators 
from  their  ofifice  as  administrators,  said  Fitzgerald,  appeals.  Af- 
firmed. 

Hatch,  J. — This  proceeding  was  begun  by  the  issue  of  an  alterna- 
tive writ  of  prohibition,  which,  upon  the  hearing  at  special  term 


498  HOME  V.  EARL  CAMDEN  ET  AL,  §     1 

^vas  made  absolute.  The  writ  oi)ei-ale(l  to  restrain  the  acting  sur- 
rogate from  enforcing  the  decree  providing  for  the  removal  of 
the  administrators  upon  an  ex  parte  application,  and  the  appoint- 
ment of  a  particular  person  in  their  stead.  We  have  already  con- 
sidered the  force  and  effect  of  this  decree,  and  reached  the  conclusion 
that  the  same  in  this  respect  is  void.  In  re  Englebrecht  (not  yet 
officially  reported)  44  N.  Y.  Supp.  551.  It  is  well  settled  that  a^ 
writ  of  prohibition  will  issue  to  prevent  a  judicial  tribunal  from 
exercising  power  over  matters  not  within  its  cognizance  or  exceeding 
its  jurisdiction  in  matters  of  which  it  may  take  cognizance.  People 
V.  Nichols,  79  N.  Y.  582 ;  Quimbo  Appo  v.  People,  20  N.  Y.  531  ; 
Thomson  v.  Tracy,  60  N.  Y.  31.  As  the  contemplated  action 
was  the  enforcement  of  a  void  decree,  it  is  proper  that  the  writ 
should  issue  in  restraint  of  it. 

The  order  should  therefore  be  affirmed,  with  $10  costs  and  dis- 
bursements.    All  concur. 

See  also  Washburn  v.  Phillips,  43  Mass.  296;  Roper  v.  Cady,  4  Mo. 
App.  593;  St.  Louis,  etc.,  R.  Co.  v.  Wear,  135  Mo.  230;  State  v.  Hopkins, 
Dud.  (S.  Car.)  loi ;  Brown,  Ex  parte,  58  Ala.  536;  State  v.  McDowell, 
43  La.  Ann.  1193;  Brodej-  v.  Superior  Ct.,  103  Cal.  124;  Arnold  v.  Shields, 
5  Dana  (Kv.),  18;  Goldsmith  v.  Owen,  95  Kv.  420;  Morrison,  In  re,  147 
U.   S.    14. 

Jurisdiction  of  subject  matter.  Blackburn,  Ex  parte,  5  Ark.  21;  State 
V.  Allen,  45  Mo.  App.  551 ;  State  v.  Judges,  40  La.  Ann.  771 ;  James  v. 
Stokes,  77  Va.  225 ;  Ray,  Ex  parte,  45  Ala.   15. 

Jurisdiction  of  person.  People  v.  Inman,  74  Hun  (N.  Y.)  130;  People 
V.  Judge  Wayne  Co.,  etc.,  26  Mich.   100. 


8.     Misi^onstruction  of  law  or  statutes  aflfecting  jurisdiction. 

'^  HOME  V.  EARL  CAMDEN  et  al. 

t 

I79.S-     House  of  Lords.     2  H.  P.lackstone,  533. 

The  judgment  of  the  court  of  Common  Pleas  {ante,  vol.  I,  487) 
having  been  reversed  by  the  court  of  King's  Pcnch,  (4  Term.  Reji. 
B.  R.  382)  a  writ  of  error  was  brought  in  parliament,  and  full}' 
argued  on  grounds  in  a  great  measure  similar  to  those  taken  in  the 
courts  below.  After  which,  on  the  motion  of  Lord  Thurlow,  the 
following  question  was  proposed  to  the  judges,  viz. — 

"Whether  the  declaration  is  sufficient  in  law^_to^bar  the  defendants 
from  proceeding  agaimst  JoTTii  Pasley  to  compel  him  to  bring 
in  the  account  of  the  sales  of  the  .ship  and  cargo,  together  with  tlie 
proceeds  of  such  parts  tlureof  as  may  Ue  in  his  hands,  power 
or  p"(;«t'ssion  ? 


§    T  PROHIBITION,   IN   GENERAL.  499 

In  answer  to  which  the  unanimous  opinion  of  the  judges  was  thus 
deUvered,  by 

Lord  Chief  Justice  Eyre.  The  )udg-es  have  conferred  upon 
the  questions  which  your  lordships  have  been  pleased  to  propose 
to  them,  and  are  unanimously  of  _the_  opinion  that  the  declaration 
in  this  cause  is  not  sufficient  In"  law  to  'T)ar  "fTre"defenclants  from 
proceed! n,!:^  against  John  Pasley,  to  compel  him  to  bring-  in  the  ac- 
couht  of  the  sales  of  the  ship  and  cargo,  together  with  the  proceeds 
of  such  parts  thereof  as  may  be  in  his  power,  hands  or  possession. 
I  will  open  to  your  lordships  briefly  the  grounds  in  law  which 
appear  to  me  to  warrant  this  opinion.  A  few  preliminary  observa- 
tions upon  the  nature  of  this  proceeding,  may  in  some  degree 
elucidate  the  subject.  This  is  an  action,  in  the  form  of  it,  Jo^ 
recover  damages  for  proceeding  after  a  writ  of  prohil)ition  has 
b^erTobtamed,  and  delivered  to^  the  party  defendant.  Probably  in 
thenar W  part  of  our  legal  history,  when  the  struggle  for  jurisdiction 
between  the  temporal  and  ecclesiastical  courts  was  violent,  and  the 
jealousy  of  the  encroachment  of  the  ecclesiastical  jurisdiction  upon 
the  temporal  was  eager,  this  was  a  procecdmg  effective  to  the  whole 
extent  of  its  form.  In  modern  and  in  better  times  this  form  of  pro- 
ceeding is  used  for  the  mere  purpose  of  subjecting  the  grounds  in  law, 
upon  which  any  particular  prohibition  is  sought  to  be  obtained  from 
any  temporal  court,  to  a  judicial  examination  in  the  most  solemn 
manner.  How  it  was  moulded  to  this  purpose,  will  be  seen  in  an 
instant,  if  it  be  considered  that  in  this  form  of  action  two  things 
would  be  necessary  to  be  proved,  the  first,  that  the  defendant  had 
proceeded  in  the  court  of  peculiar  jurisdiction  after  the  writ  of 
prohibition  had  been  delivered,  the  second,  that  this  proceeding  was 
an  injury  to  the  plaintiff.  But  the  plaintiff  w^ould  have  no  ground 
to  complain  of  the  proceeding  after  a  writ  of  prohibition  delivered, 
as  an  injury  to  him,  (though  it  might  be  a  contempt  for  which 
the  party  might  be  amenable  to  the  king)  unless  he  could  show 
that  the  writ  had  issued  properly,  and  that  he  had  a  just  right  to 
claim  the  benefit  of  it.  This  goes  at  once  to  all  the  merits  of  the 
prohibition  which  is  supposed  to  have  issued,  and  makes  the  legal 
ground  of  it  the  gist  of  the  action. 

Such  being  the  nature  of  this  proceeding  it  becomes  a  convenient 
mode  of  trying  whether  a  prohibition  ought  to  issue,  and  it  is 
made  practicable  by  considering  all  that  relates  to  the  contempt, 
incurred  by  proceeding  after  the  writ  had  actually  issued,  as  mere 
form,  and  the  damages  nominal.  According^  in  modern  times  when 
prohibitions  are  applied  for  to  the  temporal  courts,  and  the  parties 
apph  ing  suggest  grounds  either  of  law  or  fact,  for  obtaining  the 
writ,  which  appear  to  the  court  so  doubtful  as  to  be  fit  to  be  put 
in  a  course  of  trial,  the  party  applying  is  directed  to  declare  In  prohi- 
bition,  that  is,  to   institute   a   feigned  action,   in   the  form  of  that 


500  HOME  V.   EARL  CAMDEN  ET  AL.  §    I 

which  is  now  under  consideration ;  in  which  action,  in  the  shape  of  a 
question,  wReTheTsucfi  prohibition  as  is  moved  for  ought  to  have  been 
granted,  the  real  question,  namely  whether  such  a  prohibition  ought 
lo  be  granted,  will  be  solemnly  considered  and  determined,  if  the 
parties  think  fit,  as  in  the  present  instance,  in  the  dernier  resort, 
by  your  lordships.  If  any  man,  who  hears  me,  thinks  that  he  ob- 
serves something  of  obliquity  in  this  proceeding,  let  him  look  to  the 
effect  of  it,  and  he  will  be  satisfied.  So  long  as  the  temporal  courts 
direct  parties  to  declare  in  prohibition,  a  prohibition  cannot  arbitrari- 
ly issue  nor  upon  any  but  the  most  solid  and  substantial  grounds, 
and  the  balance  in  which  are  to  be  weighed  all  the  different  jurisdic- 
tions, in  which  the  public  justice  of  the  country  is  administered 
tc  the  people,  will  be  holden  by  your  lordships.  In  the  present  case 
the  plaintifif  has  declared  in  prohibition,  and  the  questionjDroposed 
by  your  lordships  to  llie  judges  goes  to  the  very  foundation  of  his 
suit ;  it  is  tantamount  to  a  question,  wh^lier  upon  the  case  stated 
in  this  declaration,  a  prohil>ition  to  the  effect  of  the  prohibition 
stated  in  this  declaration,  ought  now  to  issue  to  the  Lord  Commis- 
sioners of  Prizes,  to  restrain  them  from  issuing  the  process  of  moni- 
tion, to  compel  John  Pasley  to  bring  in  an  account  of  the  sale  of 
the  ship  and  cargo  mentioned  in  the  proceedings,  together  with  the 
proceeds  of  such  part  thereof,  as  may  be  in  his  hands,  power  or 
possession.  The  ground  made  by  this  declaration  for  a  prohibition 
to  restrain  the  prize  court  from  issuing  process  to  compel  the  bringing 
in  the  account  of  sales  and  proceeds  of  the  ship  and  cargo,  is  a  sup- 
posed contravention  of  the  prize  acts  now  in  force,  particularly 
the  statutes  of  the  12th  and  21st  of  his  present  majesty.  lL,is^0S' 
siiiucd,  that  If  a  court  of  peculiar  jurisdiction  tcwV/  proceed  contrary 
to  the  proz'isioi  of  the  statute  lazv  of  tlic  realm  (and  that  if  such 
a  court  misinterprets  any  of  these  provisions,  it  does  proceed  sub- 
stantially contrary  to  them,)  tJiis  is  a  good  ground  for  0  prohibition. 
If  it  were  necessary  to  a  decision  of  your  lordship's  question,  that  the 
judges  should  afiirm  or  deny  this  proposition  in  the  extent  in  which 
I  have  stated  it,  we  should  have  found  ourselves  obliged 
to  request  the  indulgence  of  farther  time  for  the  examination  of  the 
terms  of  the  proposition.  It  undoubtedly  belongs  to  the  king's 
temporal  courts  to  restrain  courts  of  peculiar  jurisdiction  from  ex- 
ceeding the  bounds  prescribed  to  them ;  and  by  far  the  greater 
])art  of  the  instances  in  our  books,  in  which  prohibitions  have  issued, 
are  cases  of  plain  excess  of  jurisdiction.  But  some  of  the  instances 
go  beyond  an  excess  of  jurisdiction,  and  seem  rather  to  fall  under 
ihc  head  of  wrong  and  injustice  done  to  the  party,  by  refusing  him 
ill  the  course  of  a  proceeding  strictly  within  the  jurisdiction,  some 
benefit  or  advantage  to  which  the  common  or  statute  law  entitled 
biin,  |)crliaps  in  r)pposition  to  the  civil  or  canon  law,  by  which  the 
p^cneral  prMCPCflings  of  those  courts  are  regulated.     The  case  of  a 


§    I  PROHIBITION,   IN    GENERAL.  5OI 

lease  offered  to  be  proved  in  an  ecclesiastical  court  by  one  witness, 
and  rejected  because  by  their  law  two  witnesses  are  necessary,  and 
the  case  of  a  copy  of  the  libel,  which  by  the  statute  law  they  are 
required  to  give,  demanded  and  refused,  are  among  those  instances. 
Qp  the  other  handr .  it  must  be  admitted  that  the  misinterpreta- 
tiori  pi  either  the  comm<  m  or  statute  law,.  in...a^roceeding  con- 
/e's&edly'wTtfiin  the,  jurisdiction  of.  those  courts,  and  where  tKey 
are  pound  to  exercise  llicir  judgment  upon  the  one  or  the  other, 
s eem s' f d "  Be~Ta tli e r  a  matter  of  error,  to  be  redressed  in  the  course 
of~TlTe"  appeal  which  the  law  has  provided,  than  a  ground  for  a 
pfollibition..  The  answer  to  this  is,  that  the  king's  temporal 
courts,  and  your  lordships  in  the  last  instance,  are,  by  the  con- 
stitution of  this  country,  to  declare  the  common  and  expound 
the  statute  law,  and  that  the  possibility  of  two  different  rules 
prevailing  upon  the  same  law,  one  in  the  king's  temporal  courts, 
and  the  other  in  the  courts  of  peculiar  jurisdiction,  ought  not 
to  exist,  and  is  effectually  prevented  without  any  unreasonable  inter- 
ference, or  breaking  in  upon  the  courts  of  peculiar  jurisdiction,  by 
the  temporal  courts  issuing  their  prohibitions  in  every  such  case. 
But  this  is  no  more  than  saying  ''proceed  to  the  very  extent  of 
your  jurisdiction  without  interruption  from  us,  only  roneinbcriiii^ 
that  you  are  always  to  declare  the  common  law  as  we  declare  it,  and 
that  zvhen  any  question  arises  touching  the  exposition  of  the  statute 
law,  if  the  subject  is  originally  of  temporal  jurisdiction  and  comes 
incidentally  before  yon,  it  is  to  be  expounded  by  you  as  %ve  expound 
it;  or  if  the  statute  concerns  your  proceedings  only,  yon  shall  ex- 
pound it  as  we  shall  say  it  ought  to  be  expounded,  zvhcn  the  ques- 
tion is  brougJit  before  us  in  prohibition."  T  understand  the  claim  of 
the  temporal  courts,  as  it  is  stated  in  the  famous  controversy  in  the 
beginning  of  the  reign  of  James  the  First,  is  to  issue  prohibitions 
to  this  extent ;  and  though  some  of  the  cases  in  our  books  have 
been  ably  distinguished  at  the  bar,  and  made  reducible  to  the  head 
of  excess  of  jurisdiction,  yet  w^e  find  traces  of  continual  claim  to  issue 
prohibition  in  the  instances  above  mentioned.  In  the  case  of  Brymer 
V.  Atkins, (Ante  Vol.  i,  164)  in  the  court  of  common  pleas  it  is  stated 
broadly  and  distinctly  asserted;  and  in  Full  v.  Hutchins,  (Cowper 
422)  Lord  Mansfield  in  delivering  the  opinion  of  the  court,  plainly 
alluded  to  it  in  the  following  passage :  "where  matters  which  are 
triable  at  common  law,  arise  incidentally  in  a  cause,  and  the  ecclesi- 
astical court  has  jurisdiction  in  the  principal  point,  this  court  will 
not  grant  a  prohibition  to  stay  trial.  For  instance,  if  the  construc- 
tion of  an  act  of  parliament  comes  in  question,  or  a  release  be  pleaded, 
they  shall  not  be  prohibited,  unless  the  court  proceed  to  try  con- 
trary to  the  course  and  principles  of  the  common  law,  as  if  they  re- 
fuse one  witness,  etc. ;  and  this  is  expressly  laid  down  by  Lord  Hale, 
2  Lev.  64,  Sir  W.  Juxon  v.  Lord  Byron.''     But  it  must  be  remem-. 


502  SMITH   V.    LANGLEY.  §    I 

bered  that  in  the  argument  of  this  very  case  in  the  court  of  King's 
Bench,  this  doctrine  was  questioned  by  one  of  the  learned  judges 
of  that  court,  upon  the  general  principle  that  the  misinterpretation 
of  an  act  of  parliament  would  be  the  subject  of  appeal,  and 
not  of  prohibition,  upon  the  authority  likewise  of  a  passage  in 
Chief  Justice  Vaughan's  argument  of  one  of  the  cases  reported 
by  him,  distinguishing  between  statutes  directory  to  the  ecclesiastical 
court  and  other  statutes,  and  upon  other  grounds  which  it  will  be 
very  fit  to  be  considered,  when  it  shall  become  necessary  to  the 
determination  of  a  case  in  judgment  before  a  temporal  court  in 
])rohibition,  to  lay  down  the  precise  rule  upon  it.  It  is  not  necessary 
so  to  do  in  the  present  case,  since  we  all  agree,  that  allowing  the 
plaintiff  all  he  has  assumed  respecting  the  authority  of  the  court 
of  common  pleas,  to  issue  a  prohibition,  he  has  made  no  ground  for  it 
in  the  prohibition,  for  he  has  not  shown  that  the  prize  court  has  con- 
travened the  prize  acts,  either  directly  or  by  mistaking  the  sense  of 
them.     *     *     * 

(So  much  of  the  opinion  as  relates  to  the  construction  of  the 
])rize  acts  is  omitted.) 

The  judgment  of  the  court  of  King's  Bench,  reversing  that  of  the 
court  of  Common  Pleas  was  accordingly  affirmed. 

In  accord. — State  v.  Hopkins,  Dud.  (S.  Car.)  loi ;  Thomas  v.  Mead, 
36  Mo.  232;   State  v.   Superior  Ct.,  8  Wash.  591; 

But  see,  State  v.  Judge,  11  La.  Ann.  696;  People  v.  District  Court,  11 
Colo.    574,    575;    State   v.    Municipal    Ct.,    26    Minn.    162. 

"The  King's  Superior  Courts  of  Westminster  have  a  superintendency 
over  all  inferior  courts  of  what  nature  soever,  and  are  by  law  intrusted 
with  the  exposition  of  those  laws  and  acts  of  Parliament  as  prescribe  the 
extent  and  boundaries  of  their  jurisdiction;  so  that  if  such  courts  assume 
a  greater  or  other  power  than  is  allowed  them  by  law,  or  if  they  refuse 
to  allow  acts  of  Parliament,  or  expound  them  otherzvise  than  according 
to  the  true  and  proper  exposition  of  them,  the  superior  courts  will  pro- 
hibit  and   control   them."     8   Bacon   Ab.   226. 


9,     Granted  before  or  after  judgment  in  lower  court. 

SMITH  v.  LANGLEY. 
1736.     Court  of  King's  Bench.     Lee,  Temp.  Hardw.  317. 

On  a  motion  for  a  prohibition  to  the  court  of  admiralty  said,  per 
Lord  Hardwicke, — The  rule  of  granting  prohil)ition  before  or 
after  sentence  is  this,  That  before  sentence  youmay  have  a  prohibj- 
tion  nj>r)n  a  suggestion  of  a  matter  of  fact,  not  a])pearing  on  the 
f.-i( '■  of  the  proceedings  below ;  but  after  sentence  mmi  cannot  oxcr- 
ftnii  the  ])rrirccdings  by  a  bare  averment  of  a  fact;  yet,  if  there  be 


§    2  MATTERS  OF   JURISDICTION.  503 

a   want   of   a    jurisdiction,   appearing   upon   the   face    of   the   libel, 
"or  any  part  of  their  proceedings,  that  is  sufficient  ground  for  a  pro- 
hibition after   sentence,   whether  the   cause^  be  in   an   ecclesiastical 
court  or  in  a  court  of  admiralty^  , . 

"Tt   J!?   rjearlv   agreed   that   in   all    cases   where  it   appears  ji^on_the   face 

of  the  libel,  that  tlie  A(HiTlralty,  Spiritual  (Jonrt,  &c.,  have  not  a  juris- 
diciionj  a  prohibition  may  be  awardcci^iUIcl^  is  yrantablc  as  well  after 
as  Be  to  re  sentence;  for  the  king's  superior  courts  have  a  superintendency 
over  all  inferior  ""jlirisdictions,  and  are  to  take  care  that  they  keep  within 
their    due    boinuls. 

But  where  the  cimrt  has  a  natural  jurisdiction  of  the  thing,  but  is 
restrained  by  some  statute;  as  by  23  II.  8,  c.  0,  for  citing  out  of  tKe" 
dtScese,  there  the  party  must  come  before  sentence ;  for  after  pleading 
and  admiffirig  the  juri-sdiction  of  the  court  below,  it  would  be  hard  and 
inconvenient    to    grant    a    prohibition. 

However,  it  is  now  decided  that  where  a  spiritual  court  incidentally 
misconstrues  an  act  of  parliament  contrary  to  the  rules  of  the  common 
law,  a  prohibition  lies  even  after  sentence;  for  until  sentence  the  courts 
ofZlcommon  law  have  no  reason  to  suppose  that  the  ecclesiastical  court_ 
will  determine  wrong,  and  the  misconstruction  is  matter  of  prohibition 
ralHer'  than    of    appeal. 

'  And  where  it  appears  on  the  face  of  the  proceedings  that  the  spiritual 
court  have  exceeded  their  jurisdiction,' a  prohibition  will  be  granted,  though 
after 'sentence. 

— SiTt  after  sentence  it  is  incumbent  on  the  party  making  the  application, 
to  show  clearly  that  the  spiritual  court  had  no  jurisdiction."  8  Bacon 
Ab.    224,    and    cases    cited. 

See  in  accord. — Clark  v.  Rosenda,  5  Rob.  (La.)  27;  Ensign  Manu- 
facturing Co.  V.  CarroH,  30  W.  Va.  532;  Bodley  v.  Archibald,  33  'W.  Va. 
229;    State    V.    Elkin,    130    Mo.    90; 

But  see  State  v.  Wythe,  2  Nott.  &  M.  (S.  Car.)  174;  Cooper,  In  re, 
143  U.   S.  472;   State  v.   Super.   Ct,  2  Wash.  St.  9- 


Section  2. — Matters  of  Jurisdiction. 

I.  Right  to  issue  writ  confined  solely  to  courts  of  superior  juris- 
diction. 

BURCH,  MAYOR  v.  HARDWICKE. 

1873.     Court  of  Appeals  of  Virginia.     23  Grat.  51, 

This  was  a  writ  of  error  to  the  judgment  of  the  corporation  court 
of  LyncKBurg.  prohibiting  (iecjrge  H.  Burch,  mayorTQEthe  city  of 
Lvnchbiirgj  from  proceeding  to  investigate  charges  against  William 
W.  Hardwicke,  the  chief  of  police  of  the  city.  Hardwicke  applied 
to  the  judge  of  the  corporation  court  of  Lynchburg'^or  a  writ  of 
prohibition,  to  restrain  the  mayor  from  investigating  charges  made 
against  Hardwicke,  as  chief  of  police,  by  several  citizens,  on  the 


504  LURCH,    MAYOR  V.    IIARDWICKE.  §    2 

ground  that  the  mayor  had  no  jurisdiction  to  make  the  investigation, 
but  that  hy  the  charter  of  the  city,  the  power  was  vested  in  tlie  police 
commissioners.  The  judge  issued  the  writ ;  and,  upon  the  hearing 
of  the  cause,  made  the  prohibition  absolute ;  and  Burch,  thereupon, 
applied  to  this  court  for  a  writ  of  error ;  which  was  awarded.  The 
case  is  stated  in  the  opinion  of  the  court. 

BouLDix,  ].,  delivered  the  opinion  of  the  court. 

(Statement  of  case  and  opinion  on  the  question  whether  writ  of 
error  was  improvidently  awarded,  omitted.) 

«  *  *  This  brings  us  to  a  consideration  of  the  errors  assigned 
by  the  plaintiff  in  error.  And  in  the  view  taken  of  the  case  by  the 
court,  it  will  only  be  necessary  to  consider  the  fourth  error,  which  is 
as  follows : 

"4.  Because_th_e_ mayor  of  a  city,  in  investigating  the  acts  of  a 
city  officer^  and  suspending  or  removing  him  for  misconduct^in 
office  does  not  sit  as  a  judicial  tribunal,  but  simply  as  an  execu- 
tive officer  administering  the  government  of  the  city,  in  respect  of 
which  there  is  no  remedy  by  writ  of  prohibition ;  this  being  a  remedy 
which  applies  exclusively  to  courts." 

The,  court  is  of  the  opinion  that  the  objection  is  well  taken. 

The  wn!  of  prohibition  is  an  ancient  common  law  remedy,  issiiiiis^ 
from  the  superior  courts  of  the  common  lazv  to  the  inferior  courts, 
to  restrain  the  latter  from  excess  of  jurisdiction.  Its  object  was 
to  keep  within  the  limits  and  bounds  of  their  several  jurisdictions 
the  various  courts  of  the  realm.  See  8  Bacon's  Abr.  title  Prohibition 
p.  206.  The  injury  for  which  the  common  law  provided  a  remedy  by 
the  writ  of  prohibition,  says  Sir  William  Blackstone,  "is  that  of  en- 
croachment of  jurisdiction,  or  calling  one  non  coram  judice,  to  an- 
swer in  a  court  that  has  no  legal  cognizance  of  the  cause."  And  he 
goes  on  to  say  that  the  writ  issues  from  the  superior  court,  "directed 
to  the  judge  and  parties  of  a  suit  in  any  inferior  court,  commanding 
them  to  cease  from  the  prosecution  thereof,  upon  a  suggestion  that 
either  the  cause  originally,  or  some  collateral  matter  arising  therein, 
docs  not  belong  to  that  jurisdiction,  but  to  the  cognizance  of  some 
otlier  court."  3  Bl.  Comm.  p.  ttt-tt2.  And  this  account  of  the  ob- 
ject and  functions  (pf  the  writ  has  been  approved  by  the  English 
jurists  and  elementary  writers  too  numerous  to  mention. 

The  same  restriction  of  the  writ  to  judicial  proceedings — to  courts 
alone — has  liccn  distinctly  and  reneatedlv  sanctioned  by  this  court. 
Tn  the  case  of  Mayo.  Mayor,  etc..  v.  James,  t2  Grat.  23.  Judge 
Moncure,  speaking  for  the  court,  says  of  (he  writ  of  prohibition: 
"Tt  is  in  effect  a  proceeding  between  courts — a  superior  and  an  in- 
/rr/'or— and  is  the  means  whereby  the  superior  exercises  its  due 
suprrt)iteudencc  over  the  inferior,  and  keeps  it  within  the  limits  and 
hounds  of  the  jurisdiction  prescribed  to  it  b\-  law."  Again:  In  the 
case  of  The  .^upcrvisr^rs  of  Culpepper  v.  Gorrell  et  al.,  20  Grat.  484. 


§    2  MATTERS  OF  JURISDICTION.  505 

522,  the  court  say:  "A  prohibition  is  the  proper  remedy  to  restrain 
an  inferior  court  from  acting  in  a  matter  of  which  it  has  no  jurisdic- 
tion, or  from  exceeding  the  bounds  of  its  jurisdiction." 

It  thus  appears  that  both  in  England  and  in  Virginia  the  ivriijif 
pj^ohibitwnJ^.jj^.pxac££diuj:;A\c^  And  furthermore 

-JEhMS^^i^i  courts  must  bear  I  he  relation  of  inferior  and  superiof; 
the  supcrio'FEaz'ing  the  authority  to  exercise  due  superintendence 

Now,  it  can  not  with  any  propriety  be  said,  in  the  first  place,  that 
the  mayor  of  a  city,  constituted  by  law  the  chief  executive  officer 
thereof,  and  clothed  with  discretionary  powers  to  supervise  the  offi- 
cers in  his  own  department,  to  investigate  their  conduct,  and  to 
remove  them  from  ofifice,  acts  as  a  conrt,  in  the  discharge  of  these 
executive  functions.  That  would  be  to  confound  the  functions  of  the 
judicial  and  executive  departments.  Nor  is  the  mayor,  when  acting 
as  chief  executive  officer  of  the  city,  in  any  sense  or  any  degree  the 
inferior  of  the  corporation  court,  or  any  wise  subject  to  its  superin- 
tendence. They  are  distinct  and  co-ordinate  departments  of  the  cor- 
porate government ;  as  much  so  as  the  executive  and  judicial  depart- 
ments of  the  state  and  federal  governments ;  and  neither  has  the 
right  to  supervise  and  control  the  other  in  the  exercise  of  their  re- 
spective duties. 

Iii  Marbury  v.  Madison,  i  Cranch's  R.  137,  170,  Ch.  J.  Marshall, 
speaking  of  .courts  interfering  with  the  discretionary  powers  of  the 
executive,  savs :  "It  is  scarcely  necessary  for  the  court  to  disclaim  all 
pretensions  to  such  a  jurisdiction.  An  extravagance  so  absurd  and 
excessive  could  not  have  been  entertained  for  a  moment.  The 
provirj.ce  of  the  court  is  solely  to  decide  on  the  rights  of  individuals ; 
not  to  inuuire  how  the  executive  or  executive  officers  perform  duties 
in  which  they  have  a  discretion.  Questions  in  their  nature  political, 
or  which  by  the  constitution  and  laws  are  submitted  to  the  executive, 
can  never  be  made  in  this  court."  The  principle  thus  affirmed  by 
Ch.  J.  Marshallj  in  Marbury  v.  Madison,  has  been  reaffirmed  in  nu- 
merous later  cases  in  the  U.  S.  Supreme  Court.  See  Gaines  v. 
Thompson,  7  Wall.  U.  S.  R.  347,  and  cases  there  cited. 

On  the  conceded  facts  of  this  case  the  court  is  of  opinion  that  the 
plaintiff  in  error,  whilst  investigating  the  charges  of  misconduct  in 
office  and  neglect  of  duty,  preferred  against  ^^'illiam  W.  Hardwicke, 
as  chief  of  police  of  the  city  of-  Lynchburg,  was  acting,  not  as  a 
court,  but  as  chief  executive  officer  of  the  city,  supervising  the  con- 
duct of  a  person  regarded  by  him  an  inferior  officer  !n  his  own 
department :  that  the  power  of  removal  in  such  cases  is  a  discretion- 
ary power  vested  in  him  as  chief  executive  officer  of  the  city;  and 
in  that  character  that  he  was  not  inferior  to  the  corporation  court ; 
and  was  no  wise  subject  to  its  superintendence  or  control ;  and,  as  a 


506  HOW  AKD   ET  AL.   V.   PIERCE  ET  AL.  §    2 

necessary  consequence,  that  the  writ  of  prohibition  was  improvi- 
dently  and  erroneously  awarded. 

The_judgment  of  the  corporation  court  must  ,be  reversed,  with 
costs  to  the  plaintiff  in  error,  and  a  judgment  entered  in  his  favor, 
discharging  the  rule,  and  giving  him  his  costs  in  the  corporation 
court    *    *    * 

Judgment  reversed. 


HOWARD  ET  AL.  V.  PIERCE  et  al. 
1866.     Supreme  Court  of  Missouri.     38  Mo.  296. 

Holmes^  Judge,  delivered  the  opinion  of  the  court. 

This_  \vas_jj^riL_oi  prohibition  _againsi.Jhe  defendant  Pierce  _ and 
the^ justices  of  the  County  Court  of  Cooper  County,  upon  a  sugges- 
tion supported  by  affidavit,  but  without  an  exemplification  of  the 
record  of  the  proceedings  being  filed  therewith.     The  suggestion  or 
the  petition  contains  but  a  very  vague  and  imperfect  statement  of 
the  facts ;  but  we  are  enabled  to  g-ather  from  it  that  the  defendant 
Pierce  had  filed  a  petition  in  the  county  court  praying  to  have  the 
plaintiffs   ejected   from  fhe  possession  of  a  lot  of  ground,  and  ~a~ 
church  building  situated  thereon,  in  the  city  of  Boonville.    The  plaiii^ 
tiffs  do  not  appear  to  have  been  made  parties  to  the  proceeding, 
whatever  it  may  have  been,  and  had  no  notice  thereof ;  but  it  appears 
that   the   county   court   proceeded   to   entertain,  jurisdiction    of   the 
matter,  and  made  certain  orders  the  effect  of  which  would  l)e  to_put 
the  petitroner  in  possession  of  the  premises  in  (|ucslinii,  eit'cting__the 
plaintiffs.    This  was  certainly  a  very  summary  i)roccss  of  cjoctment. 
We  can  only  say  that  it  is  clear  from  one  thing — that  the  county 
court  had  no  jurisdiction  to  entertain  such  a  ])roceeding.     It  was 
said  in  the  argument  that  the  title  to  the  property  was  vested   in 
the  county,  and  that  the  defendant's  application  was  only  to  have 
the  liberty  of  taking  possession  of  the  church ;  but  nothing  of  all 
this  appears  on  the  record.     So  far  as  we  can  see  by  the  record 
before  us,  the  prohibition  was  properly  granted.     The  circuit  court 
has  a  superintending  control  over  the  county  court    (R.  C.   1855, 
P-  53.3.  §  8)  and  ]io\ver  to  issue  all  writs  which  may  be  necessary  in 
the  exercise  of  its  jurisdiction  according  to  the  princijiles  and  usages 
of  law.     {Ihid  36.)    A  prohibition  may  issue  to  forbid  any  judicial 
proceeding  1x;yond  the  projjcr  jurisdiction  of  the  inferior  court — 
Thomas  v.  Mead,  36  Mo.  232;  Washburn  v.  riiillips,  2  Mete.  296; 
V:x  parte   RratuUacht,  2  TIill   -T^f^"].     As  being  a  summary  .action  of 
cjerttTUTit  thi^  was  clcarlv  a  judicial  "proceeding,  whalewr  else  ina\' 
fTci'.  '^i<\:  and  when  llv  elrenit  eom't  has  iin'i'-dicf  i' m  ..vrr 


§    2  MATTERS  OF   JURISDICTION.  50/ 

the  su1)ject  matter,  there  can  be  no  doubt  of  its  power  to  issue  this 
\vrit  against  any  court  of  inferior  jurisdiction  over  which  it  exercises, 
a' superintending  control.     Rees  v.  Lawler,  4  Bibb.  395. 

The  defendant  did  not  api)ear  and  answer  the  writ,  otherwise  than 
by  a  motion  to  quash,  which  was  overruled  and  the  prohibition 
made  absolute.     This  motion  w^as  properly  overruled. 

It  further  appears  that  in  the  judgment  which  was  entered,  an 
additional  order  was  made,  upon  facts  made  to  appear  to  the  court, 
directing  the  clerk  to  issue  a  writ  of  restitution  to  restore  to  the 
plaintiffs  the  possession  of  the  premises,  which  (we  may  infer)  had 
been  taken  from  them  by  virtue  of  the  orders  which  had  been  made 
by  the  county  court  in  disobedience  to  the  prohibition.  We  find  no 
warrant  in  any  authority  for  such  a  proceeding.  The  proper  remedy 
for  a  contempt  would  seem  to  be  an  attachment' to  be  enforced  by 
fine  and  imprisonment,  8  Bac.  Abr.  by  Bouvier,  244.  The  sheriff's 
execution  shows  that  he  had  made  restitution  by  putting  the  plain- 
tiflFs  in  possession  of  the  church  from  which  they  had  been  thus  un- 
lawfully ejected.  The  defendant  Pierce  moved  to  set  aside  the  judg- 
ment, for  the  reason,  among  others,  that  this  order  of  restitution 
was  irregular,  and  his  motion  was  overruled.  The  justices  of  the 
county  court  appear  to  have  acquiesced  in  the  action  of  the  court  be- 
low, and  refused  to  join  with  the  defendant  Pierce  in  his  appeal. 

On  the  whole,  notwithstanding  some  irregularities,  we  do  not  see 
but  that  substantial  justice  has  been  done ;  nor  do  w^e  think  that  it 
would  be  of  any  material  advantage  to  the  defendant  here  if  the 
judgment  should  be  reversed.  The  parties  have  other  effectual 
remedies  to  settle  their  respective  rights  to  the  possession  of  this 
]iroperty — 2  Hill,  367.  We  see  no  better  way  than  to  affirm  the 
judgment,  and  it  is  accordingly  affirmed. 

Judge  W^AGNER  concurs ;  Judge  Lovelace  absent. 

'niejurisdiction  of  the  state  cimrl-;  to  issue  prohibition,  is  usually  fixed 
by'The  'constku'Eion^  in  the  supreme  court,  and  by  the  statutes  or  consti- 
tutiofniniie  inferior  courts.  For  specific  cases  on  jurisdiction  of  state 
(rcrcrTfs"""see' restate  v.  Rombauer,  99  Mo.  216;  People  v.  Circuit  Court, 
59  111.  App.  514;  State  V.  Judge,  39  La.  Ann.  97;  Day  v.  Board,  102  Mass. 
310;  Singer  Manufacturing  Co.  v.  Spratt,  20  Fla.  122;  Planters'  Ins.  Co. 
V.  Cramer,  47  Miss.  'iQi;  Fleming  v.  Commissioners.  31  W.  Va.  608; 
State  V.  Smith,  104  Mo.  419;  Stately.  Whitaker,  114  N.  Car.  818;  Mem- 
phis V.  Halsey,  59  Tenn.  210;  Gres'ham  v.  Ewell,  84  Va.  784;  Miller  v. 
Wheeler,  33  Neb.  765;  State  v.  Columbia,  16  S.  Car.  412;  Hyatt  v.  Allen, 
54  Cal.  353;  State  v.  Benton,  12  Mont.  66;  State  v.  Hall,  47  Neb.  579; 
State  V.   Pollard,   112  Wis.  232. 

The  writ  will  not  lie  to  prevent  or  compel  the  removal  of  causes  from 
state  to  federal  courts.  Walcott  v.  Wells,  21  Nev.  47;  Ex  parte  R.  R. 
Co.,   63   Ala.    349. 

Contra.     Sheehy  v.  Holmes,  55  Cal.  4S5. 

The  U.  S.  Supreme  Court  has  no  jurisdiction  to  issue_  prohibition  to 
the  XT.  ST" Hrstricf  court  save  where  tlie^  latter  is  exercising  admiralty 
TUfigdlctiO'n:     H:i"7flf??   Christie,  44   U.  "ST  292;    Cooper,   In   re,   138  U.    S. 


508  THO^IAS   GRAY   V.    COURT   OF    MAGISTRATES.  §    2 

404.  The  supreme  court  may,  however,  issue_^  the  writ  in  aid  of  its 
aopellatT  jungHirtmn  ^6"  the  circuit  arid  "^sffrcf  courts  are  (miIv  given 
power  to  issue  the  w^rit  when  it  "may  be  necessary  Tor  the  exercise  of 
their  respective  jurisdictions  and  agreeable  to  the  usages  and  principles  of 
law."  So  also  of  other  extraordinary  writs.  The  federal  courts  have  nq_ 
authority  to  issue  the  writ  to  state  courts.  Bininger,  In  re,  7  Blatchf, 
(U.    S.   Cir.)    159. 


2.  Questions  of  jurisdiction  must  be  determined  by  the  Superior 
Court. 

THOMAS  GRAY  v.  COURT  OF  MAGISTRATES  AND 
FREEHOLDERS. 

1825.     Court  of  Appeals  of  South  Carolina.     3  McCord,  175. 

AIoTiON  for  a^pjqhibitign  beioj£  Mr.  Jjjsxic.e  Richardson. 

The  appellant  in  this  case  was  taken  u£  under  a  warrant  from 
John  Mitchell,  one  of  the  justices  of  the  peace,  on  a  charge  for  in- 
sorence,  and  for  an  atternpt  to  strike  ^Ir.  \\'illiam  AIcDow ;  and  a 
court  composed  of  the  said  magistrate  and  two  freeholders  was 
formed  for  the  purpose  of  trying  him  under  the  act  of  assembly 
regulating  the  trial  of  negroes  and  slaves.  The  appellant  filed  his 
stiggestion  for  a  prohibition  in  the  office  of  the  clerk  of  the  court 
for  Charleston  district,  against  the  magistrates  and  frccliolderVto 
restrain  them  from  proceeding  in  the  trial,  alleging  in  his  sugges- 
tion that  he  was  not  a  negro,  midatto  or  slave  under  the  negro  act  of 
1740,  but  a  free  Indian  and  the  descendant  of  a  ircv  Indian  woman 
in  amftv  \\  illi  lliis  stale;  that  he  consequently  came  within  the  ex- 
cq)tion  mentioned  in  the  act  and  therefore  was  not'  subject  to  the 
jurisdiction  of  the  court  of  magistrates  and  freeholders.  In  support 
of  this  suggestion,  affidavits  in  proof  of  these  lads  were  also  filed. 

Mr.  Justice  Richardson  refused  the  prohibit imi.  and  assigned  for 
reason  "that  the  iiTatter_£liaig£jl. .was,  within  the  juris.diclion_  ofjhe 
magistrate  and  freeholders,  and  that  all  the  incidental  questions  aris- 
ing out  of  the  facts  set  up  by  way  of  defence,  remained  within  the 
jurisdiction.  He  said  were  this  not  the  case,  any  party  charged 
before  an  inferior  court,  might,  l)y  alleging  a  fact,  raise  a  question 
belonging  exclusively  to  a  higher  tribunal,  and  thus  at  pleasure 
estop  the  inferior  court j  /T^r  (^rafia;  an\-  negro  might  allege  that  he 
was  a  white  man,  and  any  man  charged  with  a  debt  of  twenty  dol- 
lars miglit  allege  that  the  -debt  was  really  thirty  dollars,  and  thereby 
obtain  a  j)rohibition.  P.ut  such  allegations  ought  to  do  no  more  than 
raise  a  question  of  fact  for  ibe  consideration  of  the  inferior  court. 
which,  if  found  fal'^e,  the  court  proceeds  to  judgment,  or  if  foimd 
true,  the  defendant  prevails.     To  reply  to  this,  that  the  oppression 


§    2  MATTERS  OF  JURISDICTION.  5O9 

of  the  citizen  and  the  usurpation  of  jurisdiction  may  be  practised  by 
the  inferior  court,  was  only  saying  what  is  not  to  be  predicted  of 
the  lowest,  any  more  than  of  the  highest  tribunal.  Both  may  oppress 
and  usurp  and  both  were  equally  liable  to  punishment  therefor ; 
but  neither  can  be  checked  while  acting  within  its  jurisdiction,  be- 
cause it  may  possibly  do  wrong  by  its  decision." 

iVn  appeal  was  now  made  on  the  grounds : 

1st.     That  the  writ  of  jtiMliii-iii  ai  is  the  only  remedy  for  persons- 
not  subject  to  the  jurisdiction  of  a  court  of  magistrates  and  free- 
holders7~wh'en  arraigned  before  such  court. 

2d."  Because  the  presiding  judge  mistook  the  law  in  allowing 
the  magistrate's  court  to  be  the  exclusive  judges  of  their  own  juris- 
diction. 

3d.  Because  the  prohibition  filed  by  Thomas  Gray  and  the  ac- 
companying affidavits,  showed  the  want  of  jurisdiction,  and  the 
writ' of  prohibition  ought  to  have  been  issued  ex  debito  justitiae. 

Johnson,  J. — The  suggestion  which  is  supported  by  affidavits, 
raises  a  strong  presumption  that  the  relator  was  not  amenable  to 
a  tribunal  constituted  by  a  magistrate  and  freeholders,  for  the  trial 
of  slaves  and  other  persons  of  color ;  and  the  question  now  made  is, 
whether  the  circuit  judge  did  not  err  in  rejecting  the  application  foj 
a  prohibition,  before  the  court  proceeded  to  judgment?  There  is 
no  doubt  that  granting  or  denying  the  writ  of  prohibition  is  in  a 
great  degree  discretionary;  (5  Bacon's  Abr.  Title  Prohibition,  B.) 
and  if  the  order  made  in  this  case  had  been  placed  on  that  footing, 
this  court  would  have  required  a  strong  case  before  they  wcadd  have 
interposed;  but  it  is  founded  on  the  opinion  that  the  court  of  jus- 
tices and  freeholders  was  the  proper  tribunal  to  determine  the  ques- 
tion of  jurisdiction.  That  itjs  the  province  or  rather  the  duty  of  the 
superior  courts  of  law  to  conBne  all  subordinate  jurisdictions  to. 
their  proper  bounds,  and  that  the  question  of  jurisdictipn.  belongs 
exclusively  to  them,  is  a  proposition  too  clear  to  be  controverted ; 
and  the  history  of  this  case,  apart  from  authority,  proves  to  demon- 
stration that  this  power  would  be  nugatory  if  they  could  not  inter- 
fere until  judgment;  for  it  is  said  that  the  court  on  the  refusal  to 
grant  the  prohibition  proceeded  to  judgment  and  execution,  by  in- 
flicting corporal  punishment  on  the  relator.  There  is  as  little  doubt, 
however,  on  the  score  of  authority.  Generally  a  prohibition  may  be 
av/arded  as  well  before  as  after  sentence ;  but  there  are  some  cases 
in  which  the  converse  of  the  proposition  is  true,  as  in  cases  where 
the  court  had  jurisdiction  of  the  matter,  but  was  restrained  by  some 
statute,  then  if  the  party  by  pleading  admit  the  jurisdiction,  a  pro- 
hibition would  not  be  granted;  (Bacon's  Abr.  title  Prohibition,  H.) 
And  if  a  court  had  no  jurisdiction  of  the  matter,  any  step  is  an  usur- 
pation ;  and  although  it  is  possible  they  may  decide  correctly,  with 
respect  to  that  question  they  may  err;  and  in  courts  organized  like 


5IO  SLXCESSION   OF  WHIPPLE.  S    2 

this,  and  from  which  there  is  no  direct  appeal,  the  remedy  comes 
too  late  after  the  sentence  is  carried  into  e.%ecution.  The  only  objei:- 
tion  opposed  to  the  application  for  the  prohibition  is  tliC-.  incon- 
femlgmrethat  would  result  from  a  precedent  wliich  would  makeJthe 
superior  courts  of  law  the  first  resort  in  all  cases  df  this  kind^and 
thus  indirectly  deprive  the  subordinate  courts  of  their  legitimate 
powers.  But  this  objection  is  well  answered  by  the  counsel  for  the 
motion.  A  security  against  its  abuse  is  found  in  the  integrity  of 
the  bar,  and,  surely  in  the  discretion  of  the  superior  tribunals.  And 
even  admitting,  that  evils  may  possibly  grow  out  of  it,  they  are  out- 
weighed by  the  probability  that  if  indulged  in  the  uncontrolled 
exercise  of  its  power,  that  no  citizen  whatever  his  station  or  rank, 
would  be  safe  in  life  or  liberty.  It  certainly  never  was  designed  to 
confide  to  this  tribunal  matters  of  such  moment.  Tlie  sentence  of 
the  court,  having  been  carried  into  execution,  any  order  which  the 
court  could  make  would  be  nugatory,  and  the  court  have  only  used 
this  occasion  to  express  its  opinion  on  a  question,  and  the  practice 
in  relation  to  which  seems  not  to  have  been  settled.  And  it  may 
be  further  remarked  that  the  act  of  the  legislature  of  1818  gives 
to  a  party  the  right  to  appeal  from  an  order  made  at  chambers  or  on 
circuit  on  an  application  for  a  prohibition,  and  it  may  be  worthy  of 
inquiry  whether  the  subordinate  court  could  proceed  after  notice  of 
appeal.  In  a  few  cases,  however,  within  my  own  experience,  upon 
notice  of  an  intention  to  appeal,  prohibitions  have  been  issued  to  re- 
strain the  proceedings  until  the  determination  of  the  appeal,  and  this 
would  probably  be  the  best  course,  as  least  subject  to  vexatious  de- 
lavs. 


SUCCESSION  OF  WHIPPLE. 
1847.     Supreme  Coi'kt  of  Louisiana.     2  La.  Ann.  236. 

)lied   to  this   court  for  a  writ  of 


])rohibition  tojjiejjijrd  d^rit't  comrt  of  New  -Oxleana]  THe  grounds 
prescnled  are  that,  on  the  12th  of  January,  1847,  he  fijejcl  in  the  scc- 
ond  district  court  of  New  Orleans  a  petition,  apjilying  f(^r  the^urat- 
orsKip  ot  the  succession  of  Whipple,  upcn  wliirli  Ihv  usual  order  of 
advertisement  was  made,  and  he  was  evcnluall\  apiioiiitcd  and  quali- 
fied as  curator  by  that  court.  That_one  Folger,  on  the  iJth  of 
January,  1847,  J)ut  upon  a  ])etilion  filed,  as  he  alleges  at  a  later  hour, 
aj^plied  f()r  tlic  curatorshi])  of  the  same  succession,  in  the  third  dis- 
trict court  of  New  Orleans,  and  also  having  been  appointed  curator 
by  this  latter  court,  has  obtafned  therein  an  order  fori  he  sale_ef 
Certain  property  of  the  succession.     Tie  also  avers  that  he  obtained 


§    2  MATTERS  OF   JURISDICTION.  5 II 

in  the  second  district  court  a  rule  on  the  adverse  curator,  Folger. 
to  show  cause  why  the  proceedings  in  the  third  district  court,  should 
not  be  transferred  to  the  second  district  court,  and  thereupon  an._pij^ 
der  of  trarisf£.r  was  made  bj  the  second  (Hstrict  court.  This  order  was 
made  without  any  concurrence,  or  action  whatever  of  the  third  dis- 
trict  cotirt  thereon.  He  alleges  that  the  appointment  made  by  the  third 
ch'stftct  court,  and  aTF  the  proceedings  in  that  court,  are  null  and 
\oi^  and  prays  that  a  writ  of  prohibition  may  issue,  forbidding  said 
tlrird  district  court  froni  further  entertaining  any  jurisdiction  in  re- 
lation to  the  administration  of  the  estate  of  said  Whipple,  inhibiting 
said  Folger  from  assuming  the  functions  of  curator  of  said  estate, 
and  directing  the  sheriff  to  forbear  proceeding  any  further  with  the 
sale  of  the  property  of  said  estate  is  intended.  The  clerk's  certifi- 
cate of  filing,  endorsed  on  the  petition  in  the  second  district  court, 
exhibits  the  hour  of  the  day  on  which  it  was  filed.  The  endorsement 
on  the  petition  filed  in  the  third  district  court,  signed  by  the  clerk, 
states  the  day  of  filing,  but  not  the  hour,  and  a  memorandum  also 
written  on  the  petition,  but  not  officially  signed,  states  the  hour  of 
filing.  It  further  appears  that  Folger  has  taken  an  appeal  from  the 
decree  of  the  second  district  court ;  but  the  third  district  court  con- 
tinued to  exercise  jurisdiction  over  the  succession,  and  has  ordered 
a  sale  by  the  sheriff. 

Thus  each  court  continues  to  exercise  it?  jurisdiction,  and  each, 
unEer  t"he~statufe,  halmig^an  independent  organization  and  Juris- 
diction, the  one  is  without  authority  to  control  the  other ;  for  It  riiiist 
be  observed  that  the  statute  has  not  provided  which  court,  in  case  of 
controversy,  shall  decide  the  disputed  question.  This  state  of  things 
may  present  a  very  proper  case  for  legislative  action.  Our  prov- 
ince, however,  is  to  interpret  the  constitution  and  the  laws  as  we  find 
them,  and  to  decide  accordingly. 

Whether  the  third  district  court  has,  or  has  not,  lawful  jurisdic- 
tion in  the  matter  of  this  succession,  is  a  question  dependent  under 
the  statute  of  1846,  upon  the  fact  of  the  time  of  the  filing  of  the 
petition  for  the  curatorship  in  that  tribunal,  and  that  question  the 
third  district  court  has,  under  the  statue,  as  full  authority  to  deter- 
mine, quoad  the  proceedings,  before  it,  as  the  second  district  court 
has  as  to  the  proceedings  in  its  forum.  The  question  has  never  been 
raised  in  the  third  district  court.  The  jurisdiction  of  this  court, 
under  the  constitution,  is  appellate  only,  except  in  cases  specially 
provided.  We_  have  not  a  general  supervising  power  and  control 
over  courts  of  inferior  jurisdiction.  Qi-i^  supervising  power,  throiigli 
tlTe^writs  of  mandamus  and  prohibition,  is  limited  to  those"cases 
where  its  exercise  is  incidental  to  and  in  furtherance  of  our  appel- 
late jurisdiction.  We  can  not  thus  create  a  cause.  The  question 
6T  jurisdiction  having  never  been   raised   before  the  third  aislnct 


512  I'EOn.E  V.    SUPERVISORS   OF   QUEENS   COUNTY.  §    2 

court,  nor  decided  by  it,  we  are  not  authorized  to  hear  and  determine 
the  question  originally,  nor  would  it  be  proper  for  the  applicant  to 
assume  in  advance  that,  if  the  question  of  jurisdiction  was  raised  in 
that  court,  it  w-ould  be  decided  adversely  or  erroneously. 

The  applicant  for  prohibition  is  not  entirely  without  remedy  be- 
fore the  third  district  court  itself,  and,  at  all  events,  he  has  not  pre- 
sented a  case  within  the  constitutional  jurisdiction  of  this  tribunal. 
It  is  obvious  that  where  two  courts  are  thus  proceeding,  very  em- 
barrassing and  anomalous  results  may  follow,  before  the  subject  can 
properlv  be  brought  before  the  appellate  tribunal.  Petitions  might 
be  filed  in  the  five  district  courts  of  New  Orleans  on  the  same  day, 
in  the  matter  of  the  same  succession  ;  five  conflicting  mandates  might 
be  sent  to  the  same  sheriff,  their  common  officer,  and  the  same  ques- 
tion might  be  determined  different  ways ;  an  impropriety,  says 
Blackstone,  which  no  wise  government  can  or  ought  to  endure.  The 
writ  of  prohibition  w'ould  arrest  such  a  mischief  in  England,  for 
there  it  is  the  king's  prerogative  writ,  and  the  king's  superior  comets 
of  ^^'estminster  have,  in  such  cases,  a  superintendency  over  all  in- 
ferior courts  of  what  nature  soever,  and  ma}'  prohibit  and  control 
them.  The  necessity  for  some  provision  with  regard  to  the  collision 
of  the  district  courts  of  New  Orleans,  will  doubtless  commend  itself 
to  the  attention  of  the  proper  department  of  the  government. 

Application  for  prohibition  dismissed,  with  costs. 


3.     Will  not  be  issued  to  ministerial  officer  or  officers. 
PEOPLE  EX  REL.  V.  SUPERVISORS  OF  QUEENS 

COUNTY  ET  AL. 

1841.    Supreme  Court  OF  New  York,     i  TTill  195. 

H.  M.  Western  moved  for  a  certiorari,  prpJiibition_,  mandamus, 
or  "some  other  writ,  instrument,  process,  order  or  proceeding,"  for 
the  relief  of  the  relator  and  other  taxable  inhabitants  of  the  town  of 
Xorth  Hempstead,  Queens  county,  frt)m  the  tax  which  the  town 
collector  was  proceeding  to  collect  by  virtue  of  a  warrant  from  the 
board  of  supervisor's  of  the  county.  He  read  an  affiidavit  of  tiic  re- 
lator, and  other  papers,  for  the  purpose  of  showing  that  the  town 
auditors,  in  October  last  improperly  allowed  the  sum  of  $3,264.22 
for  the  costs  and  expenses  of  several  suits  in  relation  to  Pearsall's 
Landing,  as  a  charge  against  the  said  town  of  North  Hempstead; 
that  the  board  of  supervisors  of  the  county,  at  their  subsequent  an- 
nual meeting,  had  directed  that  sum  together  with  the  other  town 
charges,  to  be  levied  upon  the  taxable  inhabitants  of  North  Hemp- 


§    2  MATTKRS  OF   JURISDICTION.  513 

stead ;  and  had  issued  a  warrant  to  the  town  collector,  who  was  now 
proceeding'  under  that  authority  to  collect  the  tax.  The  affidavit 
states  the  relator's  tax  at  $46.50  of  which  he  believes  the  sum  of  %2y 
is  on  account  of  the  illegal  charge  above  specified.  In  addition  to 
the  objection  that  the  allowance  in  question  was  not  a  proper  town 
charge,  several  objections  were  taken  to  the  proceedings  of  the 
town  auditors  and  boards  of  supervisors.  It  was  also  insisted  that 
the  warrant  to  the  collector  was  irregular  and  void ;  and  that  the 
collector  had  forfeited  his  office  by  neglecting  to  execute  his  official 
bond  in  due  time  and  proper  forni. 

(So  much  of  the  opinion  as  relates  to  certiorari  is  omitted.) 

Bronson,  J. —  *  *  The  only  remaining  branch  of  this  case  is 
the  motion  of  the  relator  for  a  writ  of  prohibition  to  the  town  col- 
lector to  stay  the  levying  of  the  tax.  A  writ  of  prohibition _doe^jaQl: 
lie  to  a  ministerial  ofTicir  tu  sta\  the  execution,  of  process-irL-his 
hands.  It  is  'lirected  to  a  court  in  whicli  some  action  or  legal  pro- 
cTecITng^is  pending,  and  to  the  party  who  prosecutes  the  suit,  and 
commands  the  one  not  to  hold,  and  the  other  not  to  follow,  the 
plea.  It  sta\s  both  the  court  and  the  party  from  proceeding  with 
the  suit.  The  writ  was  framed  for  the  purpose  of  keeping  inferior 
courts  within  the  limits  of  their  own  jurisdiction,  without  encroach- 
ing upon  other  tribunals.  (2  Inst.  601,  F.  N.  B.  94.  Vin,  Ab.  Tit. 
Proh ;  and  the  same  title  in  Com.  Dig.,  Bac.  Ab.  7th  Lond.  ed.,  and 
Tomlins'  Law  Diet.  3  Bl.  Comm.  iii.  See  also  Tomlins'  Law  Diet. 
tit.  Consultation;  and  F.  N.  B.  116.)  Our' statute  also  shows  that 
the  writ  issues  to  a  court  and  prosecuting  party — ^not  to  g  ministerial 
cfficer.  (2  R.  S.  587,  §§  61,  65.)  In  the  People  v.  Works  (7  Wen- 
dall,  486).  although  the  motion  for  a  prohibition  seems  to  have  been 
granted,  the  remarks  of  the  chief  justice  are  in  perfect  harmony  with 
what  has  been  said  in  this  opinion  in  relation  to  the  proper  office  of 
the  writ ;  and  that  case  must  not  be  understood  as  having  decided 
anything  more  than  that  the  tax  then  under  consideration  was  il- 
legal. There  is  not  the  slightest  foundation  in  the  books  for  saying 
that  a  prohibition  may  issue  to  a  ministerial  officer  to  stay  the  execu- 
tion of  process  in  his  hands. 

If  the  relator  has  sufifered.  or  is  in  danger  of  sufifering  an  injurv, 
he  is  mistaken  in  supposing  that  we  can  grant  the  relief  which  he 
asks. 

Motion  denied. 

In  accord.— Grier  v.  Taylor,  4  McCord  (S.  Car.)  206;  People  v.  District 
Court,  6  Colo.  534;  Coronado  v.  San  Diego,  97  Cal.  440:  Clayton  v 
Heidelberg,    17   Miss.   623;    Lacroix   v.   Commissioners,   50   Conn.    ^21 

Contra.  People  v.  Works,  7  Wend.  (N.  Y.)  486;  Burger  v.  State  i 
McAlullen    (S.   Car.)    410. 


514  TRAINER  V.  PORTER.  §    3 

Section  3. — The  Parties. 

I.     Interest  required  of  plaintiff. 
TRAINER,  PRESIDING  JUSTICE,  etc.,  v.  PORTER,, 

JUDGE,    ETC.,    ET    AL. 

1870.     Supreme  Court  of  Missouri.    45  Mo.  336. 

Currier,  Judge,  delivered  the  opinion  of  the  court. 

This  is  an  application  for  a  writ  of  prohibition  forbidding  the  fur- 
ther entertainment  or  prosecution  of  the  proceedings  therein  de- 
scribed. 

The  petition  shows  that  one  Talbot,  late  of  said  Montgomery 
county,  died  seized  of  a  large  amount  of  real  estate,  situated  in  that 
county,  and  that  his  personal  assets  were  insufficient  to  pay  his  debts 
that  one  Pittman  was  appointed  by  the  county  court  of  Montgomery 
county  to  administer  upon  said  Talbot's  ^estate ;  that  said  Pittman, 
subsequent  to  his  appointment,  and"  in  all  respects  in  due  conformity 
to  law,  advertised  and  sold  at  public  vendue  certain  of  said  dece- 
dent's real  estate,  and  that  the  defendant  Powell  became  the  pur- 
chaser thereof,  and  that  he  duly  complied  with  all  the  terms  and 
conditions  of  said  sale ;  that  said  administrator  thereupon  reported 
the  sale,  and  all  his  proceedmgs  in  the  premises,  to  said  Montgomery 
county  cnnrt  for  confirmation  ;  that  the  court,  at  its  November  term, 
1869,  took  the  same  into  consideration,  and  being  fully  advised  in 
relation  thereto,  declined  to  approve  the  sale,  and  by  its  considera- 
tion and  judgment  affirmatively  disapprovecf  the  same. 

The  petition  then  proceeds  to  shcnv  that  the  dcferKlant^  Gilchrist 
Porter,  .judge  of  the  circuit  court  of  said  count \.  upon  the  applica- 
tion of  the  other  defendant,  setting  out  ami  sImw  ing  the  facts  as 
aforesaid,  on  tlie  251I]  oC  Xovember,  1869,  issued  his  writ  of  man- 
damus, directed  to,  said  county  court,  and  commanding  it  to  approve 
said  sale,  or  show  cause  for  its  failure  to  do  so,,  at  the  then  next 
succeeding  April  term  of  said  court ;  that  said  mandamus  proceed- 
ings are  still  pending,  and  that  the  same  greatly  embarrass  the 
progress  of  business  in  said  county  court  and  obstruct  the  adminis- 
tration of  justice  therein. 

The  ]>etition  is  demurred  to,  and  the  facts  therein  recited  admitted 
to  be  true.  The  question  is  therefore  i)rcseiited  whether  the  pe- 
tition, u])on  itsnTaccTniakes  a  case'which  will  justify  this  court  in 
further  prohibiting  the  further  prosecution  of  the  mandamus  pro- 
ceedings comi)lained  of;  and  this  raises  the  further  in([uiry  whether 
the  circuit  court  has  jurisdiction  of  the  cause  pending  .Ueiore  it, 
namely:  the  mandamus  suit. 

It  is  not  questioned  that  the  circuit  court  possesses  a  superintend- 


§    3  THE    PARTIES.  515 

ing  control  over  the  county  courts  and  that  it  may,  by  its  process 
of  mandamus,  in  proper  cases,  require  the  latter  to  proceed  with 
the  business  before  it,  and  act  thereon.  It  has,  however,  no  author- 
ity to  determine  for  the  county  court  what  judgment  it  shall  render, 
or  to  require  it  to  reverse  its  decisions,  in  matters  of  judicial  cog- 
nizance after  it  has  once  acted.  It  is  the  settled  doctrine  on  this 
subject,  that  when  the  subordinate  tribunal  acts  judicially,  it  must 
be  left  free  to  exercise  its  best  judgment,  and  that  the  superior 
court  has  no  authority  to  dictate  to  the  former  its  judgments.  (State 
ex  Tel.  Adamson  v.  Lafayetts  Co.,  41  Mo.  224;  Elkins  v.  Athearn,  2 
Denio,  192 ;  People  v.  Judges  of  Duchess  Co.  20  Wend.  659,  and 
see  the  cases  cited  in  the  opinion  of  the  court.) 

That  the  county  court  acted  judicially  in  the  disapproval  of  the 
administrator's  sale,  is  not  disputed.  (See  State  ex  rel.  West  v. 
CTafl<  county  court,  41  Mo.  49,  and  cases  cited.)  It  is  urged,  how- 
ever, that  the  circuit  court  acquired  jurisdiction  of  the  subject  mat- 
ter of  the  mandamus  suit  pending  before  it,  and  that  this  court  ought 
not,  therefore,  to  inquire  into  the  manner  in  which  that  jurisdiction 
is  being  exercised.  This  proposition  contains  an  erroneous  assump- 
tion. The  court,  by  its  process,  acquired  jurisdiction  of  the  party, 
but  not  of  the  cause  of  action,  towit :  the  action  of  the  court  in  dis- 
approving the  administrator's  sale.  That  was  the  gravamen  of  the 
complaint,  and  the  circuit  court  as  we  have  seen,  had  no  jurisdiction 
of  it  whatever. 

It  is  further  insisted  that  the  writ  of  prohibition  ought  not  to  issue 
for  the  reason  that  the  proceedings  of  the  circuit  court  may  be  re- 
viewed in  tliis  court,  through  the  medium  of  successive  appeals  or 
writs  of  error;  and  that  it  does  not  yet  appear  what  action  the  cir- 
cuit court  may  finally  take  in  the  premises.  These  suggestions 
merited  consideration  prior  to  the  issue  of  the  preliminary  writ; 
but  that  writ  was  ordered,  and  the  case  is  now  here,  and  may  as 
well  be  disposed  of  on  its  merits,  so  that  the  county  court  may  at 
once  proceed  with  its  appropriate  business. 

It  is  further  suggested  as  an  objection  to  these  proceedings  that 
the  complainant  has  no  personal  interest  in  the  contest — that  he  is 
a  mere  stranger  to  the  litigation.  //  the  fact  were  so,  that  would 
not  necessarily  dispose  of  the  case.  In  State  ex  rel.  West  v.  Clark 
County  Court,  41  Mo.  49,  the  judge  delivering  the  opinion  of  the 
court  says  that  a  prohibition  may  issue  against  a  court  acting  with- 
out jurisdiction,  at  the  "instance  of  any  one  of  the  parties,  or  even 
of  a  stranger."  and  cites  36  Mo.  232 ;  38  Mo.  296 ;  5  East.  345 ;  i 
Bay,  382;  2  Mete.  296;  23  Ala.  94;  i  Hill  201.  But  the  presiding 
justice  of  the  Montgomery  County  court;  against  whom  the  man- 
damus proceedings  are  pending,  can  hardly  be  regarded  as  a 
"stranger"  to  the  controversy.    He  is  a  party  to  it. 

Peremptory  writ  ordered.     The  other  judges  concur. 


5l6  WALTON   V.    GREENWOOD.  §    3 

WALTOX,  COUNTY  ATTORXEY  v.  GREENWOOD,  et  al., 
COUNTY  COMMISSIONERS. 

1872.     Supreme  Judicial  Court  of  Maine.     6o  Maine,  356. 

Barrows,  J- — Obviously  there  are^insuperable  technical  objections 
to  the  maintenance  of  this  process,  which  seems  throughout  to  have 
been  irregular  and  inapplicable  to  the  case  as  stated  by  the  peti- 
tioner. 

The  praver  of  the  petition  is,  "that  a  writ  of  prohibition  may  issue 
to  said  court  of  county  commissioners  (meaning  the  respondents), 
prohibiting  them  from  causing  the  records  and  files  in  the  various 
county  offices  in  Somerset  County  to  be  removed  to  Skowhegan,  and 
from  causing  notice  of  that  fact  to  be  published  in  certain  news- 
.papers,  as  provided  in  §  4  of  an  act  of  the  legislature  approved  Feb. 
15,  1872. 

I.  The  petition  is  subscribed  and  sworn  to  by  Sylvester  J.  Wal- 
ton as  county  attorney  for  Somerset  County,  and  the  only  persons 
named  as  respondents  therein  are  "Albert  N.  Greenwood,  John 
Russell  and  Sylvanous  B.  Walton,  county  commissioners  of  Som- 
erset County." 

Proper  and  competent  parties  are  indispensable  in  every  legal 
process.  The  petitioner  here  asserts  no  personal  grievance.  He 
undertakes  to  intervene  in  behalf  of  the  county  and  to  represent  it 
in  this  proceeding.  In  view  of  R.  S.,  c.  78,  §  10,  which  confides  this 
power  in  express  terms  to  the  county  commissioners,  we  do  not 
tliink  it  competent  for  the  county  attorney  to  interfere  of  his  own 
motion  in  behalf  of  the  county  in  this  manner.  Under  the  section 
referred  to,  the  county  commissioners  are  to  "represent"  the  county 
— are  "to  have  the  care  of  its  property  and  the  management  of  its 
business."  They  are  responsible  directly  to  the  i)eople  who  elect 
Ihem  for  the  manner  in  which  they  discharge  their  duties.  But 
while  they  are  in  office,  they,  and  not  the  county  attorney,  are  to  rep- 
resent the  county  in  business  of  this  description,  and  the  county  at- 
torney acts  under  their  direction  and  simply  as  an  attorney,  in  the 
matters  in  which  the  county  is  interested. 

It  is  true,  that  in  cases  where  a  writ  of  prohibition  appears  to  be 
necessary  to  keep  an  inferior  court  within  the  limits  of  the  jurisdic- 
tion prescribed  by  the  laws  and  statutes  of  the  state,  it  may  issue  at 
the  suggestion  of,  or  upon  the  information  laid  by,  either  of  the 
parties  or  by  a  mere  stranger.  Bacon's  Abr.  Vol.  IV,  p.  243,  tit. 
TVnliil)ition  (C). 

It  may  well  be  that  if  llic  county  attorney  or  any  other  citizen 
of  the  comity,  acting  in  his  individual  capacity  laid  before  us  an  in- 
formation, suggesting  that  the  court  of  county  commissioners  were 
usurping  any  authority  over  the  county  records  not  given  them  by 


§    3  '^HE    PARTIES.  517 

the  statutes  of  tlie  state,  or  were  exercising  their  powers  in  a  man- 
ner unauthorized  by  law,  we  should  feel  bound  to  listen  to  his 
proofs,  and  apply  the  remedy  required.  But  it  does  not  follow  that 
when,  as  in  this  petition,  he  assumes  to  speak  "for  and  in  behalf  of 
the  county  of  Somerset"  in  his  official  capacity  only,  we  can  disre- 
gard the  remonstrance  of  these  respondents,  claiming  that  they  alone 
legally  represent  the  county,  and  have  the  care  of  its  property  and 
the  management  of  its  business,  and  that  the  county  attorney  has  no 
right,  in  the  name  of  the  county  or  in  his  official  capacity,  to  institute 
a  process  of  this  nature. 

2.  But  if  there  is  a  want  of  a  proper  party  plaintiff,  it  is  equally 
apparent,  that  inasmuch  as  the  writ  of  prohibition,  if  granted,  oper- 
ates against  the  party  adversely  interested,  the  town  of  Skowhegan 
has  such  an  interest  in  the  question  here  presented,  that  it  ought  to 
be  made  a  party  respondent  and  have  notice  of  the  pendency  of  this 
petition. 

To  proceed  without  such  notice  to  the  town  would  violate  the 
fimdamental  rule  that,  in  all  suits  in  courts  of  common  law,  a  serv- 
ice upon  the  persons  or  parties  adversely  interested  is  indispensable. 
Ex  parte  Davis,  41  Maine,  59 ;  Penobscot  R.  R.  Co.  v.  Weeks,  52 
Maine,  456. 

3.  This  case  comes  before  us  only  upon  exception  filed  to  the 
rulings  and  adjudications  of  the  judge  presiding  at  nisi  prius.  The 
question  presented  is,  were  the  ruhngs  and  decision  erroneous  as  to 
matters  of  law? 

What  is  called  "the  proof  of  the  suggestion"  or,  in  other  words, 
the  question  whether  the  facts  alleged  in  the  information,  upon 
which  the  claim  for  the  prohibition  is  founded,  are  substantially  true 
as  alleged,  was  submitted  to  him,  and  upon  well  known  rules  his  de- 
cision upon  that  question  is  binding  and  conclusive,  and  can  not  be 
reviewed  on  exceptions. 

Now  the  exceptions  themselves  state  that  he  decided  "that  the 
conditions  of  the  act  to  change  the  place  of  holding  the  supreme 
judicial  court  for  the  county  of  Somerset,  and  to  change  the  Shire 
Town  of  Somerset  county,  approved  Feb.  15,  1872  (and  above  re- 
ferred to),  "had  been  compHed  with."  If  this  were  so,  then  the 
county  commissioners  were  expressly  required,  by  the  act  referred 
to,  to  do  that  which  the  petitioner  asks  us  to  prohibit. 

The  gravamen  of  the  petitioner's  complaint  appears  to  be  that 
these  conditions  have  not  been  complied  with,  and  this  is  alleged 
with  much  detail  and  divers  specifications,  as  a  reason  why  the  pro- 
hibition should  be  granted. 

The  finding  of  the  judge  as  set  forth  in  the  exceptions  negatives 
these  allegations  directly,  and  this  should  have  been  the  end  of  the 
case.  It  has  been  so  often  held  that  exceptions  do  not  lie  to  cor- 
rect error  in  the  decision  of  questions  of  fact,  that  a  citation  of 


5l8  WALTON    V.    GREENWOOD.  §    3 

authorities  is  needless.  This  precise  point  seems  to  have  been  in 
the  mind  of  the  judge  when  he  certified  the  exceptions  "as  correct 
and  allowed  if  exceptions  will  lie  in  the  case."  The  order  of  the 
presiding  judge,  dismissing  the  temporary  prohibition  and  petition, 
was  in  accordance  with  the  long  settled  course  of  proceeding  upon 
applications  of  this  sort,  and  the  petitioner  had  no  ground  for  com- 
plaint thereof.  For  "though  a  surmise  be  matter  of  fact  and  triable 
by  a  jury  yet  it  is  in  the  discretion  of  the  court  to  deny  the  prohibi- 
tion when  it  appears  to  them  that  the  surmise  is  not  true."  Aston 
Parish  v.  Castle  Birmidge  Chapel,  Hobart,  67. 

"When  a  prohibition  is  moved  for  the  method  is  for  the  party  to 
file  a  suggestion  in  court,  stating  the  proceedings  that  have  been 
had  in  the  court  below,  and  then  suggesting  the  reason  why  he  prays 
for  the  prohibition ;  upon  this  the  court  grants  a  rule  for  the  other 
party  to  show  cause  why  a  writ  of  prohibition  should  not  issue ; 
and  if  it  appear  to  the  court  that  the  surmise  is  not  true  or  not  clearly 
sufficient  to  ground  the  writ  upon,  they  will  deny  it."  Bac.  Abr. 
Vol.  IV,  tit.  Prohibition  (A)  in  notes. 

Tt  is  only  when  the  cause  alleged  is  seen  to  be  true  and  clearly 
sufficient,  that  the  prohibition  is  granted. 

While  it  is  thus  evident  that,  whatever  might  be  the  general  mer- 
its of  the  petitioner's  case,  this  process  must  fail ;  yet,  inasmuch  as 
those  merits  have  been  elaborately  discussed  by  counsel,  and  as  the 
matter  involved  possesses  sufficient  local  interest  and  importance  to 
make  it  probable  that  the  main  questions,  if  not  now  settled,  would 
be  presented  in  some  other  form,  we  think  it  best  not  to  base  our 
judgment  exclusively  upon  objections  simply  technical,  but  to  give 
the  positions  taken  by  those  opposed  to  the  removal  of  the  county 
seal  from  Norridgewock  to  Skowhegan,  a  deliberate  and  careful 
consideration.     *     *     * 

(Remainder  of  opinion  concerning  validity  of  the  act  of  removal 
is  omitted.) 

By  reason  of  the  fact  that  keeping  inferior  courts  within  their  legal 
bounds  is  regarded  primarily  as  a  matter  of  public  interest,  much  less 
strictness  is  observed  in  determining  who  are  proper  parties  to  the  writ 
of  prohibition  than  is  the  case  with  otlier  extraordinary  writs.  And 
while  it  would  doubtless  be  regarded  as  an  irregularity  to  issue  the  writ 
in  the  nauK-  of  a  private  party  instead  of  the  state,  it  has  been  held  that 
such  irregularity  is  not  sufficient  cause  for  quashing  the  proceeding. 
Baldwin  v.  Cooley.  i  Rich.  L.  (S.  Car.)  256.  But  the  relator  seems  never 
to  have  been  obliged  to  show  any  specific  personal  interest  and  the  writ 
could  even  issue  at  the  suggestion  of  one  who  was  in  no  wise  a  party  to 
the  record  in  the  suit  or  action  to  be  prohibited.  Com.  Dig.  142.  The 
reason  as  laid  down  by  the  early  English  Judges,  is  that  "where  an  in- 
ferior court  exceeds  its  jurisdiction,  it  is  chargeable  with  contempt  of 
the  sovereign  as  well  as  a  grievance  to  the  party."  Ede  v.  Jackson, 
Forlesquc    345.      See    also    2    Coke    Inst.    607. 


§    3  THE    PARTIES.  5I9 

ANONYMOUS. 

1700.     Court  of  King's  Bench.     12  Mod.  Rep.  423. 

Holt,  Chief  Justice.     In  a  prohibition,  either  of  the  parties  con- 
tending below  may  be  plaintiff. 


2.     The  defendant. 

Gray,  C.  J.— "The  only  necessary  defendant  (to  a  writ  of  pro- 
hibition) is  the  tribunal  whose  proceedings  are  sought  to  be  re- 
strained, controlled  or  quashed."  Connecticut  River  R.  R.  Co.  v. 
County  Commissioners,  127  Mass.  50. 


HAVEMEYER  et  al.  v.  SUPERIOR  COURT  OF  THE  / 
CITY  AND  COUNTY  OF  SAN  FRANCISCO. 

1890.     Supreme  Court  of  California.    84  Cal.  327;  24  Pac.  121. 

(Only  so  much  of  the  opinion  as  deals  with  the  writ  of  prohi- 
bition as  a  proper  remedy  is  here  given.) 

(This  was  an  original  application  for  a  writ  of  prohibition  to 
the  respondent  court  commanding  and  directing  said  court  and 
judge  and  the  receiver  of  said  court,  to  desist  and  refrain  from 
proceeding  and  acting  upon  or  in  pursuance  of  a  certain  order  ap- 
pointing said  receiver.) 

Beatty,  C.  ].  *  *  *  We  come  now  to  the  questions  as  to  the 
remedy.  Prohibitions  arrest  the  proceedings  of  an  inferior  judi- 
cial tribunal  or  ofificer  when  such  proceedings  are  without  or  in  ex- 
cess of  the  jurisdiction  of  such  tribunal  or  officer,  and  the  writ  is- 
sues in  all  cases  where  there  is  not  a  plain,  speedy,  and  adequate 
remedy  in  the  ordinary  course  of  law.  Code  Civil  Procedure, 
§§  1102,  1103.  We  ha/e  shown  that  the  superior  court,  in  appoint- 
ing the  receiver,  exceeded  its  jurisdiction,  and  there  is  no  question 
that  the  petitioners  are  seriously  injured  by  the  enforcement  of 
the  order.  If.  then,  they  have  no  plain,  speedy,  adequate  remedy 
in  ordinary  course  of  law,  they  are  clearly  entitled  to  the  benefit 
of  the  writ  of  prohibition  to  arrest  the  proceedings  under  the  void 
order.  It  is  claimed,  however,  that  so  far  as  the  superior  court  is 
concerned,  there  is  nothing  to  arrest,  that  its  order  was  made  and 
executed  before  the  alternative  writ  was  issued,  that  the  receiver 
alone  is  now  acting,  and  that  the  writ  does  not  run  against  him.  It 
is  true  the  writ  does  not  run  against  ministerial  officers,  and  it  is 
also  true  that  its  operation  is  preventive  rather  than  remedial.  But 
property  in  the  hands  of  a  receiver  is  in  the  hands  of  the  court. 
The  receiver  is  the  mere  instrument  of  the  court,  and  what  he  does 
the  court  does.    It  is  the  court,  therefore,  and  not  the  receiver  which 


520  HAVEMEVER  V.  SUPERIOR  COURT.  §    3 

holds,  administers  and  disposes  of  the  property  in  his  hands ;  and 
so  long  as  the  property  remains  undisposed  of,  action  by  the  court 
is  necessary.  In  such  case,  there  is  judicial  action  to  be  arrested,  in- 
jury to  be  prevented,  and  a  writ  of  prohibition  is  appropriate  for 
that  purpose.  The  writ  runs  to  the  court  and  operates  directly  upon 
the  court,  but  indirectly  upon  the  receiver.  If  it  is  served  upon 
the  receiver,  it  is  only  that  he  may  have  timely  notice  that  the  pro- 
ceedings of  the  courts  are  arrested,  and  may  stay  his  hand,  as  he  is 
bound  to  do,  having  no  power  to  act  independently  of  the  court, 
from  which  he  derives  all  his  authority.  In  this  case,  when  the  pe- 
tition was  filed,  and  our  alternative  writ  directed  to  issue,  the  re- 
ceiver, as  we  shall  see,  was  still  striving  to  obtain  complete  posses- 
sion of  the  refinery  and  other  property  claimed  by  the  petitioners ; 
ar\d.  even  if  he  had  been  in  complete  control,  that  would  have  been 
but  the  first  of  a  series  of  steps  to  be  taken  in  carrying  out  the  pur- 
pose of  his  appointment.  The  keeping  of  the  property,  in  such  a 
case  is  a  continuous  wrong.  The  closing  down  of  the  works  is  an 
independent  wrong.  The  use  of  a  portion  of  the  property  to  pre- 
serve the  rest  is  an  unlawful  interference  with  the  rights  of  those 
lawfully  in  possession.  Besides  all  this,  there  remained  to  be  car- 
ried out  the  sale  and  final  distribution  of  the  property.  By  the  very 
terms  of  the  order  appointing  the  receiver,  he  is  to  hold  the  property 
subject  to  the  further  orders  of  the  court  concerning  it;  and  the 
necessity  of  such  further  orders  would  be  implied,  if  it  had  not  been 
expressly  indicated.  As  we  understand  the  authorities  on  this  point, 
the  operation  of  the  zmt  of  prohibition  is  excluded  only  in  cases 
where  the  action  of  the  inferior  tribunal  is  completed,  and  nothing 
remains  to  be  done  in  pursuance  of  its  void  order.  If  its  action  is 
not  completed  and  ended,  its  further  proceedings  may  be  stayed 
and  if  it  is  necessary  for'the  purpose  of  afl:"ording  complete  and  ade- 
quate relief,  what  has  been  done  will  be  undone.  If  this  were  not 
so,  the  inferior  court,  by  proceeding  expeditiously  and  arbitrarily, 
could  defeat  the  remedy. 

Great  reliance  is  placed  by  counsel  for  the  respondent  upon  the 
decisions  of  this  court,  such  as  Chester  v.  Colby,  52  Cal.  517,  and 
R.  R.  Co.  v.  Superior  Court,  59  Cal.  476,  to  the  cfi^ect  that  ivhcn 
an  inferior  court  or  tribunal  is  proceeding,  or  threatening  to  pro- 
ceed, ht  excess  of  its  jurisdiction,  the  objection  to  its  want  of  juris- 
diction must  be  first  submitted  to  such  inferior  court  or  tribunal, 
and  by  it  overruled,  before  resort  is  had  to  a  higher  court  for  a 
"x'rit  of  prohibition;  and,  undoubtedly  sucli  is  the  established  rule  of 
practice  in  this  state.  TUit,  if  this  is  the  law,  it  must  inevitably 
happen  in  every  case,  as  it  would  probably  happen  in  many  cases 
nnrk-r  any  rule,  that  the  lower  court  will  make  its  ruling  on  the 
niiestidn  of  jurisdiction  before  any  prohibition  can  be  sued  out ;  and, 
\    it  holds  that  it  has  jurisdiction,  and  makes  orders  in  consonance 


§    3  1HE    PARTIES.  521 

with  that  view,  the  writ  of  prohibition  will^e  of  no  avail  unless  it 
affords  the  means,  not  only  of  arresting  f^jjjire  action,  but  of  un- 
doing past  action.  In  other  words,  the  two  positions  contended 
for  would  practically  abolish  the  remedy.  No  better  illustration  of 
the  working  of  this  theory  can  be  found  than  that  afforded  by  the 
piesent  case.  When  the  order  to  show  cause  why  a  receiver  should 
not  be  appointed  was  served,  neither  these  petitioners,  nor  the  de- 
fendant corporation  nor  its  stockholders,  could  have  got  a  writ  to 
prohibit  the  appointment  of  a  receiver  without  first  objecting  in  the 
superior  court  to  its  want  of  jurisdiction.  Such  objection,  as  we 
have  seen  was  made.  It  would  have  been  sufficient  to  have  objected 
that  there  was  no  application  by  a  creditor  or  stockholder  for  a  re- 
ceiver, and  no  grounds  alleged  for  such  appointment ;  but  the  de- 
fendant corporation,  or  its  stockholders,  went  further.  They  showed 
affirmatively  that  there  were  no  creditors  and  that  all  the  stock- 
holders desired  the  statutory  trustees  to  settle  the  business  of  the  cor- 
poration. They  showed  everything,  in  short,  necessary  to  sustain 
their  objection  to  the  jurisdiction;  and  the  opinion  of  the  superior 
judge,  supra,  shows  that  their  objections  were  strenuously  argued 
and  maturely  considered.  But  what  happened?  After  holding  the 
matter  under  advisement  for  nearly  a  month  the  respondent  filed 
an  opinion  overruling  the  objections  to  his  jurisdiction,  and  on  the 
Some  day  appointed  a  receiver,  who  on  the  same  day  qualified  by 
taking  the  oath  and  filing  his  bond,  procured  an  order  approving  his 
bond  and  confirming  his  powers,  and,  actually,  according  to  his  own 
views,  had  possession  of  the  vast  property  in  controversy,  before 
the  agent  of  the  petitioners  or  their  attorneys  had  any  notice  that 
their  objections  to  the  jurisdiction  had  been  overruled.  If  such 
proceedings  conducted  with  such  precipitate  haste,  can  deprive  the 
injured  party  of  a  remedy  to  which  he  is  clearly  entitled,  then  our 
law  must  be  lame  and  impotent  indeed.  But  happily  there  is  no 
foundation  for  the  claim,  that  an  inferior  court  can  by  mere  haste 
and  precipitancy  defeat  the  appropriate  remedy  for  excess  of  ju- 
risdiction, at  least  in  a  case  where  it  may  be  intercepted  before  its 
action  is  fully  completed. 

We  are  referred  by  counsel  for  respondent  to  a  number  of  the 
decisions  of  this  court  which  are  supposed  to  sustain  their  position 
on  this  point,  but  we  do  not  find  them  at  all  in  conflict  with  our 
views.  Not  one  of  them  related  to  a  case  like  this,  and  the  general 
expressions  to  be  found  in  the  opinions  must  of  course  be  construed 
with  reference  to  the  facts  of  the  particular  case.  In  Hull  v.  Supe- 
rior Court,  63  Cal.  179,  it  was  said  that  prohibition  was  not  avail- 
able to  prevent  the  acts  of  a  de  facto  ministerial  officer,  nor  to  pre- 
vent judicial  acts  already  done.  The  attempt  in  that  case  was  to 
try  the  right  to  the  office  of  sheriff.  It  was  decided  that  this  could 
not  be  done  by  prohibition,  and  what  was  said  as  to  judicial  acts 


522  IIAV'EMEYER   V.    SUPERIOR    COURT.  §    3 

already  done  had  reference  to  the  acts  of  the  superior  judge  rec- 
ognizing the  ofticial  character  of  the  incumbent  dc  facto  of  the  office. 
Such  acts  must  of  necessity  have  been  complete,  and  end^d  past 
remedy.  In  Moore  v.  Superior  Court,  64  Cal.  345,  it  was  held  that 
the  order  of  the  superior  court  was  not  in  excess  of  its  jurisdiction, 
which  was  a  sufficient  reason  for  dismissing  the  proceeding,  and 
it  was  in  fact  dismissed  on  that  ground.  What  else  was  said  in  the 
opinion  seems  to  have  been  in  answer  to  the  claim  that  the  court  had 
power  to  undo  something  that  the  receiver  had  done  in  excess  of 
his  authority.  It  ought  not  to  be  necessary  to  point  out  the  dis- 
tinction between  that  case  and  this.  Here  the  order  of  the  court  is 
in  excess  of  its  jurisdiction,  and  the  court  through  its  receiver,  is 
doing  and  continuing  to  do,  and  threatening  to  complete  a  series  of 
proceedings  which  are  a  wrong  and  injury  to  the  petitioners.  In 
that  case  the  order  of  the  court  was  regular  and  valid.  The  court,  to 
which  the  writ  alone  runs,  had  done  nothing  in  excess  of  its  juris- 
diction ;  but  the  receiver,  as  was  claimed,  was  doing  or  had  done 
something  which  as  a  receiver  he  had  no  right  to  do.  Of  course 
the  writ  of  prohibition  was  not  the  proper  remedy  in  such  a  case. 
The  case  of  Coker  v.  Superior  Court,  58  Cal.  177,  does  not  touch  the 
point ;  the  decision  being  that  the  superior  court  had  not  exceeded 
its  jurisdiction.  Other  decisions,  cited  from  the  reports,  of  other 
states,  are  equally  inapplicable,  but  we  have  no  time  to  review  them. 
We  will,  however,  refer  to  the  language  quoted  by  counsel  from 
High,  Ex.  Rem.  §  766.  He  quotes  the  following :  "Another  distin- 
guishing feature  of  the  writ  is  that  it  is  a  preventive  rather  than 
a  corrective  remedy  and  issues  only  to  prevent  the  commission  of  a 
future  act,  and  not  to  undo  an  act  already  performed."  To  show 
what  this  means,  he  should  have  quoted  what  follows  in  the  next 
sentence :  "Wlien,  therefore,  the  proceedings  which  it  is  sought  to 
prohibit  have  already  been  disposed  of  bv  the  court,  and  nothing  re- 
mains to  be  done  either  by  the  court  or  the  parties,  the  cause  having 
been  absolutely  dismissed  by  the  inferior  tribunal,  prohibition  will 
not  lie,"  etc.  This  is  really  the  whole  extent  of  the  rule.  Where  the 
proceeding -in  the  lower  court  has  ended,  and  the  court  has  nothing 
further  to  do  in  ]mrsuance  or  in  completion  of  its  order,  or  where 
it  has  dismissed  the  proceeding,  prohibition  is  no  remedy ;  but,  where 
anything  remains  to  be  done  by  the  court,  prohibition  not 
only  prevents  what  remains  to  be  done,  but  gives  complete  relief  by 
undoing  what  has  been  done.  See  forms  of  writs  cited,  2  Chit.  Pr. 
354,  355.  Rx  parte  Morgan  Smith,  23  Ala.  94;  Jones  v.  Owen,  5 
Dowl.  &  L.  660 ;  Marsden  v.  Wardle,  3  El.  &  Bl,  695 ;  and  cases 
therein  cited  ;  Serjeant  v.  Dale,  L.  R.  2  Q.  B.  558.  In  White  v. 
Steele,  12  C.  B.  (N.  S.)  383,  the  court  says  (page  412),  "The  writs 
in  the  register  and  elsewhere  which  conclude  with  a  mandamus  to 
the  Court  Christian  to  recall  an  excommunication  nlrcadv  errone- 


§    3  THE    PARTIES.  523 

ously  fulminated,  or  a  sequestration  wrongly  issued,  are  all,  as  to 
the  prohibitory  part,  peremptory,  and  the  mandamus  to  revoke  the 
unauthorized  proceeding  only  accessory  to  the  peremptory  prohibi- 
tion, and  necessary  to  give  it  effect."  Here  is  a  clear  indication  of 
the  extent  of  the  remedial  ofifice  of  the  writ.  It  is  primarily  and 
principally  preventive.  Its  office  is  to  arrest  proceedings ;  but  when 
a  case  arises  in  which  there  are  proceedings  to  be  stayed  or  pre- 
vented, it  will  also  annul  such  prior  proceedings  as  may  be  neces- 
sary to  make  the  remedy  complete.  The  principle  is  that  which  pre- 
vails in  equity.  When  there  is  jurisdiction,  the  court  will  afford 
complete  relief.  A  party  will  not  be  compelled  to  resort  to  more 
than  one  proceeding,  or  more  than  one  court,  for  more  than  one  in- 
jury. See  also  French  v.  Noel,  22  Grat.  454.  Many  other  cases  are 
cited  in  the  brief  of  counsel  for  petitioners  to  this  point,  and  might 
be  cited  here,  but  it  is  unnecessary.  In  the  nature  of  things  it  must 
be  true  that  when  a  receiver  has  got  possession  of  property  under  a 
void  commission,  and  the  future  acts  of  the  courts,  i.  e.,  the  sale 
of  the  property  and  disposition  of  its  proceeds,  are  arrested  by  pro- 
hibition, the  writ  will  also  require  a  restoration  of  property  to  the 
petitioner ;  for  otherwise  prohibition  would  be  worse  than  no  remedy 
at  all.  It  would  prevent  the  owner  from  getting  either  the  property 
or  the  proceeds.  The  receiver  would  continue  to  hold  it  discharged 
of  the  duty  of  accounting  for  it. 

We  will  next  consider  the  objection  that  prohibition  will  not  lie 
because  the  petitioners,  had  other  plain,  speedy,  and  adequate  rem- 
edies in  due  course  of  law.  It  is  suggested  that  they  might  have 
moved  the  court  below  to  withdraw  its  order  for  a  receiver.  But 
suppose  that  the  court  insisted  that  everything  should  be  absolutely 
given  over  to  the  possession  of  the  receiver  before  he  would  listen 
to  any  application  for  a  revocation  or  modification  of  his  order. 
Can  it  be  said  that  a  motion  only  to  be  considered  on  such  condi- 
tions afforded  an  adequate  remedy,  or  any  remedy?  And  suppose 
the  motion  had  been  heard  and  denied?  Would  that  have  helped 
them?  After  all,  it  would  have  been  necessary  to  appeal  to  some 
other  court  for  relief.  But  surely  counsel  can  scarcely  be  serious  in 
contending  that,  because  a  party  can  move  a  court  to  set  aside  an 
invalid  order,  therefore  he  can  not  have  a  writ  of  prohibition ;  for, 
if  this  were  so,  there  never  could  be  a  writ  of  prohibition.  Such  a 
motion  would  always  be  possible.  The  most  that  can  be  claimed  is 
that  an  application  should  be  made  to  the  lower  court  before  mov- 
ing for  the  writ.  But  this  is  another  point  to  which  we  shall  refer 
hereafter.     *     *     * 

Prohibition  to  issue. 

See  also.  State  v.  Superior  Court,  15  Wash.  668;  Ex  parte  Hill,  38 
Ala.  429;  State  v.  Ross.  122  Mo.  435;  State  v.  Hirzel,  137  Mo.  435;  Wads- 
worth  V.  Queen  of  Spain,  17  Q.  B.  171. 


524  EX   PARTE  WILLIAMS.  §    4 

Section  4. — Pleading,  Practice  and  Procedure. 
I.     Common  law  practice. 

••Xofa.—  W' hen  the  cause  is  doubtful,  the  court  usually  in  grant 
of  prohibitions  made  the  first  rule,  that  parties  should  show  cause 
whv  a  prohibition  should  not  go ;  the  next  rule  is,  that  a  prohi- 
bition go,  unless  cause  be  showed ;  and  then  the  rule  is  made 
absolute  to  have  a  prohibition."    i    Keble  281. 


Ex  PARTE  WILLIAMS. 

1842.     Supreme  Court  of  Arkansas.     4  Ark.  537. 

Dickinson^  J. — Writs  of  prohibtion  were  granted  in  England, 
both  in  the  Common  Pleas  and  King's  Bench.  Burke's  case,  Vaughn, 
157,  209;  Langdale's  case  12  Co.  58,  109.  It  lay  where  an  inferior 
court  was  proceeding  without  jurisdiction.  Fringe  v.  Child,  Moore, 
780;  Martin  v.  Archbishop  of  Canterbury,  And.  258;  or  where  the 
jurisdiction  belonged  properly  to  another  court.  Edward's  case, 
13  Co.  9;  Case  of  Prohibition,  12  Co.  76;  or  when  the  inferior  court 
transcended  its  jurisdiction  by  holding  plea  for  too  large  an  amount. 
Coats  V.  Suckerman,  i  Ro.  252 ;  or  when  a  plaintiff  had  one  demand, 
and  split  it  into  several  actions,  so  as  to  give  an  inferior  court  juris- 
diction. Catchmade's  case,  6  Mod.  91.  So,  where  the  judges  pro- 
ceeded in  cases  where  they  were  prohibited  by  an  act  of  parliament. 
Porter  v.  Rochester,  13  Co.  4.  The  writ  would  not  lie  to  a  court 
having  cognizance  of  the  cause,  or  jurisdiction  of  the  subject,  on 
a  suggestion  of  erroneous  proceeding.  March,  92,  pi.  152.  The 
remedy  in  such  cases  was  by  appeal.  Smith  v.  Mayor  of  London, 
6  Mod.  78;  Cuillian  v.  Gill.,  i  Lev.  164.  The  rule  was,  at  common 
law,  that  no  prohibtion  lay  to  an  inferior  court  in  a  cause  arising 
out  of  their  jurisdiction,  until  that  matter  had  been  pleaded  in  the 
inferior  court,  and  the  plea  refused.  Cook  v.  Liceuse,  i  Ld.  Raym. 
346;  Wayman  v.  Smith,  i  Sid.  464;  i  Mod.  64,  S.  C. ;  i  Mod.  81  ; 
Marriott  v.  Shaw,  Com.  278;  Mendyke  v.  Stint,  2  Alod.  272.  It 
must  appear,  in  the  suggestion,  that  the  plea  was  verified,  and 
tendered  in  ])crson,  during  the  sitting  of  the  inferior  court.  Sparks 
V.  Wood,  6  Mod.  146;  Clerk  v.  Andrews,  i  Show.  12.  And  there 
is  no  precedent  of  a  prohibition,  quia  timet.  The  writ  was  obtained 
on  a  suggestion,  without  which  no  prohibition  lies  to  an  inferior 
court.     T'ishop  v.  Corbet,  i  Lev.  253;  r)laxton  v.  Honor,  12  Mod. 

'I  he  suggestion  staled  the  nattux  of  the  case,  the  proceedings  in 
the  court  below,  anol  concluded  with  a  prayer  for  a  prohibition.  If  the 
motion   was   fomidcd  on   a   matk-r  of  suggestion   only,  an   affidavit 


§  4  PLEADING,  PRACTICE  AND  PROCEDURE.  525 

of  the  truth  of  the  matter  suggested,  was  necessary.  lo  Mod.  387 ; 
Burdett  v.  Newell,  2  Ld.  Raym.  1211  ;  Salk.  549 ;  but  it  was  otherwise 
where  the  truth  of  the  suggestion  appeared  on  the  face  of  the  pro- 
ceedings below,  though  after  judgment.  Godfrey  v.  Liewellin,  Salk. 
549 ;  Selby  v.  York,  C.  T.  Hard.  392.  Upon  the  suggestion  being 
filed,  the  court  granted  a  rule  to  show  cause  why  the  writ  should  not 
issue,  which  was  afterwards  made  absolute,  or  discharged,  accord- 
ing to  the  circumstances  of  the  case.  If  it  was  a  nice  or  doubtful 
case,  the  court  made  the  rule  absolute,  and  directed  the  party  ap- 
jMying  to  declare,  which  he  did,  by  serving  the  other  side  with  the 
rule,  without  taking  out  a  w^rit,  and  then  delivering  his  declaration. 
If  the  defendant  then  submitted,  he  might  refuse  the  declaration, 
and  the  court  would  then,  on  his  application,  stay  the  proceedings 
without  costs,  because  he  acknowledged  that  the  rule  ought  to  go, 
and  declined  relying  on  the  proceedings  below;  i  Saund.  136,  n. 
i;  Bull.  N.  P.  218;  Gegge  v.  Jone,  2  Str.  1149;  or  the  defendant 
might  insist  upon  a  declaration.  But  if  the  court  was  of  opinion 
against  a  prohibition,  the  party  applying  had  no  right  to  declare. 
Rex  V.  Bishop  of  Ely.  i  W.  Black.  8c,  s.  c.  i  Burr.  198. 

The  inferior  court  was  bound  to  desist  immediately  on  the  appli- 
cation for  a  prohibition,  and  the  court  above  took  notice  of  their 
practice  to  do  so ;  and  would  take  care  there  should  be  no  further 
proceedings,  by  attaching  the  judge  of  the  inferior  court,  for  his 
contempt  in  going  on.  i  Sand.  136,  n.  2.  By  the  declaration  the 
party  who  applied  for  prohibition,  suing  qui  tarn,  complained  of 
the  party  proceeding  against  him  in  the  inferior  court  of  a  plea, 
wherefore  he  prosecuted  a  plea  in  the  court  below,  etc.,  after  a 
Drohibition  to  the  contrary  thereof,  directed  and  delivered  to  him, 
for  this,  towit :  that,  whereas,  etc.,  setting  forth  all  the  facts,  the 
objection  to  jurisdiction  made  in  the  court  below,  and  the  refusal  of 
the  court  to  admit  the  plea  and  the  allegation,  concluding  that  the 
defendant  is  endeavoring  to  obtain,  or  has  judgment  and  con- 
demnation, though  the  writ  of  prohibition  has  been  directed  de- 
livered to  him  on,  etc.,  to  the  contrary,  in  contempt  of  the  state,  and 
to  the  damage  of  the  plaintiff,  etc.,  concluding  with  the  common 
ad  dumnum.  Crouch  v.  Collins,  i  Sand.  136;  Lilly's  Entries,  316- 
328. 

This  declaration  commenced  an  action,  which  was.  in  notion 
of  law,  founded  upon  attachment  against  the  defendant  for  a 
contempt  in  proceeding  after  a  writ  of  prohibition,  had  been  served 
upon  him.  But  it  was  mere  fiction,  used  for  the  purpose  of  trying, 
with  greater  certainty,  whether  the  inferior  court  ought  to  proceed 
further  in  the  suit.  The  defendant  was  not  in  fact,  served  with 
a  writ  of  prohibition,  and,  therefore,  had  not,  in  truth,  incurred 
any  contempt  for  a  disobedience  of  it,  but  this  matter  was  alleged 
for  form's  sake,  to  entitle  the  plaintiff  to  demand  damages  of  the 


526  EX   PARTE   WILLIAMS.  §    4 

defendant,  and  thereby  to  give  the  action  the  requisites  of  a  suit. 
Notice  was  necessary  to  be  given  the  defendant  before  his  appear- 
ance. State  V.  Allen,  2  Iredell,  183.  He  then  either  demurred 
or  pleaded  to  the  declaration,  but,  in  either  event,  he  traversed  the 
proceeding,  after  publication  served,  and  the  contempt,  and  com- 
menced his  plea  or  demurrer  to  material  points,  in  order  to  have 
a  consideration  in  this  behalf,  and  prayed  judgment  and  writ  of 
consultation,     i  Saund.  136. 

Whether  the  defendant  pleaded  or  demurred,  no  verdict  was  taken 
on  the  traverse,  as  to  the  further  proceeding  and  the  contempt. 
It  was  immaterial,  like  the  finding  as  to  the  z>i  ct  annis,  in  trespass. 
Stratford  v.  Neale,  i  Str.  482 ;  s.  c.  8  Mod.  i.  If  there  was  a  verdict 
for  the  plaintiff,  and  if,  upon  demurrer,  the  court  were  of  opinion, 
that  there  was  not  sufficient  ground  for  a  prohibition,  judgment 
was  given  for  the  plaintiff,  and  both  the  defendant  and  the  inferior 
court  were  prohibited  from  going  any  further.  It  was  then,  and 
not  till  then,  that  the  writ  of  prohibition  actually  issued.  I  Saund. 
136.  The  writ  was  directed  to  both  the  court  and  the  party,  and 
commanded  the  one  not  to  hold,  and  the  other  not  to  follow  the 
plea.     I  N.  Hill  200. 

If,  on  the  other  hand,  the  verdict  was  for  the  defendant,  or  the 
court,  upon  demurrer,  was  of  opinion  that  there  was  no  ground 
for  a  prohibition,  then  a  writ  of  consultation  was  awarded ;  and 
where  this  writ  was  awarded  on  the  merits,  there  could  never  be 
a  prohibition  upon  the  same  suggestion.  This  writ  was  called  the 
writ  of  consultation,  because  upon  consviltation  had,  the  judges 
found  the  prohibtion  to  be  ill-founded,  and,  therefore,  by  this  writ, 
they  returned  the  cause  to  its  original  jurisdiction  to  be  there  de- 
termined, and  commanded  the  inferior  court  to  proceed  and  de- 
termine it,  the  prohibition  to  the  contrary  notwithstanding,  i  Saund. 
136,  n.  5;  Lilly's  Entries,  562 ;  i  Keb.  286;  8  Mod.  3;  2  Keb. 
404,  pi.  17.  If  the  declaration  varied  from  the  suggestion  it  was 
bad.  Harrow's  case,  7  Mod.  114;  Gomershall  v.  Bishopp,  i  Lecon, 
128.  Both  parties  in  prohibition  being  actors,  there  might  be  traverse 
upon  traverse.  Fort.,  350.  No  traverse,  however,  could  be  taken 
on  an  allegation  that  the  court  below  refused  the  plea.  Moore,  425 ; 
.Stratford  v.   Neale,   Str.  483. 

If  there  was  no  plea  or  demurrer  in  due  time,  judgment  went 
by  nihil  dicit.     Turner  v.  Rainer,  12  Mod.  447. 

Such  we  have  ascertained,  after  considerable  research,  to  have  been 
the  common  law  doctrine  and  mode  of  proceeding.  And  as  we  have 
no  statute  upon  the  subject,  the  common  law,  with  all  its  incidents, 
is,  of  course,  as  far  as  applicable,  in  force  here,  and  it  only  becomes 
necessary  so  to  mould  the  rcinedy  as  to  render  it  avaliable  under 
our  system  of  jurisprudence,  preserving,  as  far  as  applicable, 
all  its  common  law  attributes. 


§    4  rLEADING,    PKAC'IICE   AXD    PROCEDl.'RE.  52/ 

We  understand,  then,  that  a  party  wishing  to  avail  himself  of 
this  writ,  in  our  courts,  must,  if  the  facts  are  not  presented  by  the 
record  of  the  inferior  court,  make  the  proper  suggestion  to  the 
superior  tribunal,  setting  forth  all  the  material  facts  upon  which  he 
relies,  with  the  proper  allegations,  and  if  the  facts  do  not  appear  on 
the  record  verify  the  truth  of  them  by  affidavit.  Upon  the  presenta- 
tion of  the  suggestion  a  rule  should  be  entered  upon  the  opposite 
party,  requiring  him  to  show  cause,  upon  a  given  day  in  court, 
why  the  writ  should  not  issue ;  which  rule,  when  so  entered  and 
served  upon  the  inferior  court,  and  the  party,  shall  stay  all  further 
proceedings  in  the  case ;  and  the  court  will  then,  in  their  discretion, 
make  it  absolute,  or  discharge  it,  and  if  the  former,  direct  the 
party  to  declare,  without  issuing  the  writ.  If  the  defendant,  upon  the 
suggestion  being  presented,  admits  the  facts,  the  rule  will  go,  and  the 
writ  issue.  But  if  he  insists  upon  a  declaration  the  case  then 
takes  the  ordinary  course,  and  must  be  decided  upon  demurrer, 
or  plea  to  the  merits,  and  the  writ  be  granted,  or  the  cause  remanded 
to  the  original  jurisdiction,  to  be  there  proceeded  and  determined 
in. 

As  it  is  a  qui  tarn  action  under  our  statute,  a  bond  for  costs 
must  be  filed  before  or  upon  the  filing  of  the  declaration,  which 
is  the  comrnencement  of  the  action. 

In  the  case  now  before  us,  and  in  which  the  party  asks  for  a 
writ  of  certiorari  to  bring  up  the  records  and  proceedings  of  the 
circuit  court,  it  is  evident  there  has  been  a  total  disregard  of 
all  the  principles  which  govern  the  mode  of  proceeding  upon 
prohibition,  and  that  until  there  has  been  a  final  disposition  of  it 
by  the  circuit  court,  the  appellate  jurisdiction  of  this  court  does  not 
attach.  Upon  final  judgment  a  writ  of  error  will  lie  as  in  ordinary 
cases. 

The  application  for  the  writ  of  certiorari  will  therefore  be  re- 
fused. 

In  the  following  cases  the  common  law  procedure  was  recognized  and 
declarations  in  prohibition  required.  State  v.  Commissioners,  i  Mills. 
(S.  Car.)  55;  Warwick  v.  Mayo,  15  Gratt.  (Va.)  528;  Johnson  v.  Boon, 
I   Spear   (S.  Car.)    268. 

See  also  Dolby  v.  Remington,  9  Q.  B.  179;  Bishop  of  Winchester's 
case,   I    Coke  38;   Croucher  v.   Collins,   i   Saund.   136. 


2.     Modern  practice. 

Under  the  system  prevailing  at  present  in  most  states  the  fictions 
and  technicalities  of  the  old  common  law  procedure  have  been 
abandoned,  retaining  however,  in  most  jurisdictions,  the  practice 
of  issuing  the  rule  to  show  cause. 


528  CHRISTIAN    PRIGNITZ    V.    RICHARD    FISCHER.  §    4 

Ordinarily  the  first  step  in  obtaining  the  writ  is  to  file  with  the 
superior  court  an  apphcation.  petition,  relation  or  suggestion  (the 
name  varies)  or  presenting  an  affidavit  of  the  facts  upon  which  the 
right  to  the  relief  sought  for  is  claimed. 


AN    ACT    TO    IMPROVE    THE    PROCEEDINGS    IN    PROHIBITION 
AND    MANDAMUS. 

I   William  IV.   ch.  21 ;    March  30,   1831. 

"Whereas  the  filing  a  suggestion  of  record  on  application  for  a  writ 
of  prohibition  is  productive  of  unnecessary  expense,  and  the  allegation 
of  contempt  in  a  declaration  in  prohibition  filed  before  writ  issued  is  an 
unnecessary  form ;  and  it  is  expedient  to  make  some  better  provision  for 
paj'ment  of  costs  in  cases  of  prohibition ;  Be  it  enacted  by  the  King's 
most  excellent  majesty  by  and  with  the  advice  and  consent  of  the  lords 
spiritual  and  temporal,  and  commons,  in  this  present  parliament  assembled, 
and  by  the  authority  of  the  same,  that  it  shall  not  be  necessary  to  file 
a  suggestion  on  any  application  for  a  writ  of  prohibition,  but  such 
application  may  be  made  on  affidavits  only ;  and  in  case  the 
party  applying  shall  be  directed  to  declare  in  prohibition  before 
writ  issued,  such  declaration  shall  be  expressed  to  be  on  behalf 
of  such  party  only,  and  not,  as  heretofore,  on  the  behalf  of  the  party 
and  of  his  majesty,  and  shall  contain  and  set  forth  in  a  concise  manner 
so  much  only  of  the  proceeding  in  the  court  below  as  may  be  necessary 
to  show  the  ground  of  the  application,  without  alleging  the  delivery  of 
a  writ  or  any  contempt,  and  shall  conclude  by  praying  that  a  writ  of 
prohibition  may  issue;  to  which  declaration  the  party  defendant  may  demur 
or  plead  such  matters  by  way  of  traverse  or  otherwise  as  may  be  proper 
to  show  that  the  writ  ought  not  to  issue,  and  conclude  by  praying  that 
such  writ  may  not  issue;  and  the  judgment  shall  be  given  that  the  writ 
do  or  do  not  issue,  as  justice  may  require;  and  the  party  in  whose  favor 
judgment  may  be  given  whether  on  verdict,  demurrer,  non-suit,  or  other- 
wise, shall  be  entitled  to  the  costs  attending  the  application  and  the  sub- 
sequent proceedings,  and  have  judgment  to  recover  the  same;  and  in  case 
a  verdict  shall  be  given  for  the  party  plaintiff  in  such  declaration,  it 
shall  be  lawful  for  the  jury  to  assess  damages,  for  which  judgment  shall 
also  be  given,  but  such  assessment  shall  not  be  necessary  to  entitle  the 
plaintiff  to  costs.     *     *     * 


3.     The  petition. 

CHRl.^TI AX    PRIC.XTTZ  v.   RICHARD  FISCHER. 

t86o.     Sutremk   Court   of    Minnesota.     4    Minn.    366. 

Flandrau,  J. — Application  for  a  writ  of  prohibition  to  restrain 
the  flefcndant,  who  is  cotirt  comniissioniT  for  the  county  of  Brown, 
frr)ni  |)rr)recding  to  hear  and  (k'lcrniinc  a  motion  to  set  aside 
a    demurrer    to    a    complaint,    and    for    judgment    as    for    want   of 


i;    J^.  I'LEADING,    PRACTICE   AND   PROCEDURE.  52g 

an  answer  in  an  action  pending  in  the  district  court  for  Brown 
county.  It  does  not  appear  from  the  affidavit  upon  which  this  apph- 
cation  is  founded,  that  the  court  commissioner  intends  to  entertain 
the  motion  which  is  noticed  for  a  hearing  before  him,  and  we  cannot 
presume  that  he  will  persist  in  doing  so  if  the  proper  objection  to 
his  jurisdiction  is  made  by  the  opposing  party.  This  court  has 
directly  decided  in  the  cases  of  Gere  v.  Weed,  3  Minn.  (352) 
and  Pulver  v.  Grooves,  id.  (359)  that  court  commissioners  have 
no  jurisdiction  in  such  matters,  and  wc  feel  bound  to  presume  that 
the  inferior  tribunals  of  the  state  will  conform  their  action  to  such 
ruling  and  decision.  The  mere  fact  that  the  plaintiff's  counsel  has 
noticed  the  motion  for  hearing  before  the  court  commissioner  does 
not  prove  that  he  will  insist  upon  entertaining  it.  To  authorize  the 
issuing  of  a  writ  of  prohibition  by  this  court,  it  should  clearly  be 
made  to  appear  that  the  inferior  court  is  about  to  proceed  in  some 
matter  over  which  it  possesses  no  jurisdiction.  This  may  be  made 
to  appear  by  setting  out  any  acts  or  declarations  of  the  court 
or  officer  which  indicate  his  intention  to  pursue  such  a  course. 

The  trial  of  an  issue  joined  upon  a  return  to  a  writ  of  prohibition 
is  .to  be  conducted  and  judgment  rendered  thereon  as  in  manda- 
mus. Comp.  Stats.  634,  §  20.  Since  the  adoption  of  the  constitu- 
tion there  can  be  no  trial  by  jury  in  this  court.  Const,  art.  6  §  2. 
Therefore  as  a  party  is  entitled  to  a  jury  trial  on  an  issue  being  made 
up,  upon  an  alternative  mandamus  (Comp.  Stats.  633,  §  13,)  this 
court  has  decided  that  it  has  no  jurisdiction  of  that  writ,  Harkins  v. 
Supervisors  of  Scott  County,  2  Minn.  342 ;  same  v.  Sancerbox,  id. 
344;  and,  by  analogy,  we  cannot  issue  the  writ  of  prohibition  under 
such  form  as  will  entitle  the  parties  to  join  an  issue  upon  the  re- 
turn and  have  it  tried  by  a  jury.  As  the  wTit  is  a  highly  useful 
one.  and  can  only  be  issued  by  this  court,  we  cannot  suppose  that  the 
constitution  designed  to  abolish  it  altogether.  We  therefore  place 
such  an  interpretation  upon  the  act  as  modified  by  the  constitution, 
as  will  allow  this  court  to  issue  the  writ  in  the  first  place,  as  an  order 
to  show  cause,  to  which  a  return  may  be  made  and  the  return  contro- 
verted by  affidavits,  as  in  other  motions ;  by  adopting  this  practice, 
the  merits  can  in  all  cases  be  litigated  and  justice  done.  The 
affidavit  in  this  case  is  not  sufficient  to  justify  the  issuing  of  the 
preliminary  or  alternative  writ,  and  we  deny  the  motion. 


530  .MORGAN  S   K.    K.    CO.    V.   COUKT  OF   .M'Pli.M.S.  §    4 

STATE  EX  REL.  MORGAN'S  LOUISIANA  &  TEXAS  RAIL- 
ROAD &  STEAMSHIP  COMPANY  v.  COURT  OF 
APPEALS,  ETC. 

1885.     Supreme  Court  of  Louisiana.     37  La.  Ann.  845. 

ArPLiCATiON  for  prohibition. 

The  opinion  of  the  court  was  dehvered  by 

Bermudez,  C.  J. — This  appUcation  for  a  prohibition  is  based 
on  the  ground  that  the  circuit  court,  to  which  appeals  have  been 
taken  in  a  number  of  cases  decided  in  favor  of  the  relating  com- 
pany, has  no  jurisdiction  over  them,  the  matter  involved  in  each, 
exceeding,  it  is  said,  two  thousand  dollars. 

The  charge  is  that  the  circuit  court  "will,  according  to  the  mode 
of  procedure  which  prevails  therein,  assimilate  said  motions  to 
dismiss  with  the  trials  of  said  suits  on  their  merits,  and  unless  re- 
strained, will  hear  and  decide  them  to  relator's  great  wrong  and 
injury." 

It  does  not  appear  that  the  motions  to  dismiss  have  been  over- 
ruled, and  that  the  court  is  about  to  proceed  to  try  the  merits  of 
the  cases. 

The  complaint  is,  not  that  the  circuit  court  has,  notwithstanding 
objection,  maintained  jurisdiction,  but  that  the  court  will  hear  and 
determine  to  relator's  great  wrong  and  injury. 

It  is  impossible  to  conceive  how,  after  the  relating  company 
has,  by  the  motions  to  dismiss,  invoked  the  powers  of  the  circuit 
court,  this  court  can  be  appealed  to,  in  order  to  prohibit  the  exercise 
of  those  powers. 

Non  constat  the  court  of  appeals  will  not  sustain  those  motions, 
if  it  be  true,  as  alleged,  that  the  matter  involved  in  each  case  ex- 
ceeds two  thousand  dollars. 

Were  the  court,  however,  to  overrule  them  illegally,  the  relators 
would  be  entitled  to  seek  relief  here  against  the  effect  of  the  ruling. 

It  has  been  repeatedly  held,  that  it  is  not  until  after  a  plea 
has  been  made  to  the  jurisdiction  of  the  lower  court  and  overruled 
by  it,  that  the  interference  of  the  supreme  court  can  be  claimed. 

There  is  no  reason  to  depart  from  that  wholesome  rule  of  prac- 
tice, which,  well  founded  in  law  and  reason,  must  continue  to 
be  enforced. 

The  application  is  dismissed  with  costs. 


§  4  PLEADIXG,  PRACTICE  AND  PROCEDURE.  53I 

MANUEL  CARIAGA  v.  W.  G.  DRYDEN. 
1866.     Supreme  Court  of  California.     30  Cal.  244. 

Petition  to  the  supreme  court  for  a  writ  of  prohibition. 

The  petitioner  was  plaintiff  in  the  case  of  Cariaga  v.  Dryden,  re- 
ported in  29  Cal.  307.  He  alleged  in  his  petition  that  the  county 
judge  threatened  to  set  aside  the  judgment  rendered  by  the  county 
court  of  Los  Angeles  County,  in  the  case  of  Cariaga  v.  Sanchez, 
ct  al,  in  obedience  to  the  writ  of  mandate  issued  by  the  district  judge 
of  Los  Angeles  county.  The  facts  in  relation  to  this  judgment  are 
reported  in  Cariaga  v.  Dryden,  29  Cal.  307. 

The  following  was  the  affidavit  to  the  petition : 

"A.  B.  Chapman  being  first  duly  sworn,  deposes  and  says, 
that  he  is  of  counsel  for  Manuel  Cariaga,  the  petitioner  in  this  cause, 
and  he  makes  this  affidavit  because  he  is  better  acquainted  with  the 
facts  that  said  Cariaga,  and  because  the  said  Cariaga  is  absent, 
and  affiant  cannot  communicate  with  him  at  present.  And  affiant 
says  that  he  has  read  the  foregoing  petition,  and  he  believes  the 
same  to  be  true." 

By  the  court,  Shafter,  J. — 

The  petition  alleges  that  the  county  judge  of  Los  Angeles  County 
threatens  to  set  aside  a  judgment  in  favor  of  petitioner  remaining 
in  the  county  court,  and  that  the  judge  has  no  jurisdiction  to  do  so, 
inasmuch  as  the  term  of  the  court  at  which  the  judgment  was 
rendered  has  long  since  transpired.  The  defendant  has  answered 
denying  the  threat  imputed,  and  disclaims  all  intentioxi  to  set  aside  or 
otherwise  interfere  with  the  judgment.  The  case  is  submitted  upon 
the  pleadings. 

The  petition  is  not  properly  verified.  The  affidavit  is  made  by 
the  petitioner's  attorney ;  but  while  the  affiant  states  that  he  believes 
the  petition  to  be  true,  he  fails  to  state  that  he  has  either  knowledge 
or  information  concerning  it.  We  cannot  notice  a  petition  for  a 
writ  of  prohibition  that  is  not  supported  by  the  proper  affidavit. 
Treating  the  petition,  however,  as  an  unverified  pleading,  it  is  suffi- 
ciently met  by  the  unverified  answer  of  the  respondent,  denying 
the  leading  allegation  of  the  petition. 

The  petition  must  be  dismissed  and  it  is  so  ordered. 

(Concurring  opinion  of  Sawyer^  J.,  is  omitted.) 


532  STATE  EX    REL.   SHAW   V.   ELLIS,  JUDGE  §    4 

STATE   EX   REL.    SHAW   v.   ELLIS,   JUDGE. 

1895.     Supreme   Court   of   Louisiana.     47    La.    Ann.    1602;    18 

South.  636. 

NiCHOLLS,  C.  J. —  (After  stating  the  facts)  *  =i=  *  The  relator 
has  filed  no  brief  in  this  matter,  and  has  obviously  abandoned 
his  application.  It  is  without  merit.  He  made  no  attempt  in 
the  lower  court  to  obtain  relief  from  the  order  of  which  he  com- 
plains. His  allegation  that  he  has  no  relief  in  the  premises,  ex- 
cept through  a  writ  of  prohibition  to  be  issued  from  this  court, 
is  a  mere  conclusion  of  law,  carrying  with  it  no  force  whatever,  in 
the  absence  of  a  statement  of  facts  which  would  go  to  support  the 
correctness  of  that  statement.  There  is  nothing  going  to  show  that 
relator  has  no  other  relief  in  the  premises  than  through  a  writ  of 
prohibition  from  this  court.  We  see  no  reason  why  he  should  not 
have  appealed  suspensively  from  the  order,  or  taken  an  injunction 
against  the  execution  of  the  same.  State  v.  Judge,  44  La.  Ann. 
193,  TO  South.  768.  The  restraming  order  hereinbefore  granted  is 
hereby  set  aside,  and  the  writ  of  prohibition  applied  for  is  denied, 
with  costs  uj^ion  the  relator. 

The  petition  or  application  should,  in  addition  to  showing  that  objec- 
tion was  made  to  the  jurisdiction  in  the  court  below,  also  show  by  the 
facts  stated,  the  absence  of  any  other  adequate  remedy  and,  if  the  writ 
is  sought  on  the  ground  of  a  misconstruction  of  a  statute,  affecting  the 
jurisdiction  of  a  lower  court,  the  statute  should  be  directly  pleaded  01 
such  facts  stated  as  will  bring  in  issue  the  construction  of  th^  statute  in 
question. 

See  also  Barnes  v.  Gottschalk,  3  Mo.  App.  222;  St.  Louis,-  etc.,  R.  Co. 
V.  Wear.  135  Mo.  230;  State  v.  Laughlin,  9  Mo.  App.  486;  Board  of 
Commissioners  v.  Spitler,  13  Ind.  235;  Henry  v.  Steele,  28  Ark.  455;  Halde- 
man  v.  Davis,  29  W.  Va.  324;  Clifford  v.  Parker,  13  Wash.  518;  Burch 
V.    Hurdwicke,   21   Gratt.    (Va.)    51:    Arnold  v.    Shields,  5   Dana    (Ky.),    18 


4.     The  rule  to  show  cause. 

MAYO  v.  JAMES. 

1855.     Supreme  Court  of  Appeals  of  Virginia.     12  Grattan,  17 

loc.  cit.  26. 

Mo N- CURE,  J. —  *  *  '''  The  following  would  seem  to  be  the 
proper  course  to  be  pursued  on  an  application  for  a  writ  of  pro- 
hibition to  a  circuit  court,  or  a  judge  thereof  in  vacation.  The 
ground  of  the  application  should  be  set  out  in  a  proper  sugges- 
tion, verified  by  affidavit,  as  to  such  material  facts  as  do  not 
ap[K'ar  on  the  record ;  or  in  r.ffidavits  instead  of  a  suggestion, 
according  to  the  code,  (T.  155,  ]).  r)ij.  If  upon  such  sugges- 
tion or  affidavits  the  court  or  judge  he  clearly  of  the  opmion 
that  there  is  no  good  ground   for  a  prohibition,  it  ought  at  once 


§  4  PLEADING,  PRACTICE  AND  PROCEDURE.  533 

to  be  denied.  But  if  otherwise,  a  rule  should  be  made  upon 
the  adverse  party  to  show  cause  why  the  writ  should  not  be  issued. 
The  execution  of  the  rule  upon  the  party  and  the  judge  of  the 
inferior  court  will  have  the  efifect  of  a  prohibition  qiiottsque  or 
until  the  discharge  of  the  rule.  Upon  the  return  of  the  rule  exe- 
cuted, the  court  or  judge  will  make  it  absolute  or  discharge  it, 
as  may  then  seem  proper ;  and  in  the  former  case,  may  direct  the 
applicant  to  declare  in  prohibition  before  writ  issued ;  and  ought  to 
do  so,  if  the  defendant  require  it.     *     *     * 


Ex  PARTE  WILLIAMS. 
1842.     Supreme  Court  of  Arkansas.     4  Ark.  537 ;  supra,  p.  524. 


STATE  EX  REL.   BEHAN  v.  JUDGES   OF  THE  CIVIL  DIS- 
TRICT COURT,  ETC. 

1883.     Supreme   Court  of   Louisiana.     35    La.   Ann.    1075. 

PocHE,  J. —  (After  stating  the  facts  and  reciting  the  provisional 
writ  and  order  to  show  cause)     *     *     * 

First.  The  point  raised  by  the  respondent  judge  in  his  return, 
questions  the  validity  of  the  order  granted,  on  the  ground,  "that  it 
was  issued  by  the  court,  but  was  issued  by  only  one  of  the  justices 
thereof,  without  consultation  with  any  of  the  other  justices." 

The  position  of  the  respondent  judge,  as  a  guidance  for  the 
conduct  of  their  tribunal,  in  dealing  with  remedial  writs  is,  that 
under  the  provisions  of  articles  89  and  90  of  the  constitution,  the 
court  alone,  or  at  least  a  majority  of  the  justices  concurring,  could 
render  a  valid  order  for  any  of  the  remedial  writs. 

Article  89  provides  that :  "The  supreme  court  and  each  of  the 
judges  thereof,  shall  have  powder  to  issue  writs  of  habeas  corpus, 
at  the  instances  of  all  persons  in  actual  custody  in  cases  where  it 
may  have  appellate  jurisdiction." 

Article  90  reads :  "The  supreme  court  shall  have  control  and 
general  supervision  over  all  inferior  courts.  They  shall  have  power 
to  issue  writs  of  certiorari,  prohibition,  mandamus,  quo  ivarranto, 
and  other  remedial  writs." 

Two  articles  must  be  construed  in  connection  with  the  pre- 
existing provisions  of  the  code  of  practice  touching  the  nature, 
definition  and  scope  of  the  writs  in  question,  and  providing  the 
mode  of  proceeding  in  the  application,  the  issuing  and  the  trial 
of  the  same. 


534  STATE  V.  JUDGES  OF  THE  Cl\lL  DISTRICT  COURT_,  ETC.  §    4 

These  rules  of  practice  recognize  and  treat  of  two  distinct  steps 
or  phases  in  the  disposition  of  these  writs.  The  first  step  is 
a  prehminary  or  provisional  order  under  which  the  subordinate 
court  complained  of,  is  apprised  of  the  proceeding  instituted  with  a 
view  to  test  the  validity  of  its  actions  in  the  matters  set.  forth  by  the 
relator.  The  second  step  is  the  final  disposition  of  the  relief  sought 
by  the  complainant,  after  considering  the  return  made  by  the  re- 
spondent judge. 

The  first  phase  in  the  proceeding  involves  the  exercise  of  a  power 
provisional  and  preliminary  in  its  character,  and,  if  not  otherwise 
regulated,  it  is  amply  provided  for  by  article  877  of  the  code  of 
practice,  which  reads: 

"The  supreme  court,  as  well  as  other  courts,  possesses  the  powers 
which  are  necessary  for  the  exercise  of  the  jurisdiction  given  to  it 
by  law,  in  all  the  cases  not  expressly  provided  for  by  the  present 
code." 

The  second  or  final  act  is  the  judgment  of  the  court  finally  dis- 
posing of  the  controversy  after  full  hearing  of  the  parties,  which 
judgment  can  be  rendered  only  in  open  court,  and  cannot  be  rendered 
w^ithout  the  concurrence  of  three  judges.    Const,  art.  85. 

The  order  for  a  preliminary  remedial  writ  is  not  a  judgment  or 
even  an  interlocutory  decree;  it  adjudicates  nothing,  and  confers 
no  vested  or  irrevocable  right.  It  is  merely  an  incipient  step  to- 
wards a  judicial  investigation  of  the  matters  and  complaints  urged 
in  the  application ;  it  can  be  modified  or  recalled  by  the  authority 
whence  it  emanates. 

To  confound  it  with  a  judgment  which  adjudicates  on,  and  dis- 
poses of  an  issue,  and  finally  settles  a  controversy,  and  for  which 
reasons  must  be  adduced  under  a  constitutional  requirement  (Const, 
art.  87)  is  a  glaring  fallacy  repulsive  to  the  legal  mind. 

Hence  it  is,  that  these  articles  of  our  code  of  practice  have  been 
uniformly  construed  as  meaning  that  the  action  of  the  supreme  court, 
or  the  concurrence  of  a  majority  of  its  justices,  is  not  essential  to  the 
validity  of  a  provisional  order  for  a  remedial  writ,  and  that  such  a 
mandate  has  always  been  viewed  in  our  jurisprudence  in  the  light  of 
an  order  entertaining  the  application,  and  directing  that  notice  there- 
of be  addressed  to  the  party  or  parties  complained  of.  The  construc- 
tion urged  by  the  district  judge  would  strike  with  absolute  nullity 
all  such  orders  rendered  otherwise  than  in  open  court. 

Out  of  term  time,  during  the  vacation  of  court,  the  justices  have 
no  power  to  meet  as  a  court,  or  to  make  and  issue  orders  and  decrees 
as  a  court.  Hence  it  would  follow,  as  a  logical  deduction  from  this 
rcasfjning,  that  during  such  time  the  remedial  writs  which  have 
been  incorporated  in  the  code  of  practice  and  engrafted  in  the 
constitution,  in  order  to  secure  a  more  speedy  administration  of  jus- 
tice, would  be  paralyzed  and  temporarily  obliterated,  and  that  the 


§  4  PLEADING,  PRACTICE  AND  PROCEDURE.  535 

wrongs  which  they  were  intended  to  correct  would  be  without 
remedy.  Such  a  conckision  is  abhorrent  to  the  common  sense 
as  well  as  justice. 

But  should  it  be  contended  tliat  the  language  of  the  constitution, 
which  must  prevail  over  the  provisions  of  the  code  of  practice  is 
peremptory  in  requiring  the  action  of  the  court,  or  the  concurrence 
of  a  majority  of  the  justices  for  the  purpose  of  issuing  a  valid, 
preliminary  remedial  writ ;  the  argument  is  answered  by  the  plain 
text  of  the  articles  89  and  90,  which,  as  conceded  b\  the  district 
judge,  must  be  construed  together. 

Article  89  unequivocally  confers  the  power  to  each  of  the  judges 
to  issue  writs  of  habeas  corpus  in  specified  cases.  Now,  article  90, 
after  creating  the  supervisory  jurisdiction  of  the  supreme  court 
continues  the  delegation  of  special  powers  begun  in  article  89, 
and  is  couched  in  the  following  significant  language : 

"They  shall  have  power  to  issue  writs  of  certiorari,  prohibition, 
mandamus,  quo  zvarranto,  etc."  The  only  grammatical  construction 
which  the  sentence  admits  of,  shows  that  the  pronoun  they  refers 
to  the  subject:  "the  supreme  court  and  each  of  the  judges  thereof," 
in  the  preceding  article  which  treats  of  the  same  subject  matter. 
Hence  it  is  apparent  that  the  power  conferred  by  the  articles  of 
the  code  of  practice  is  not  only  maintained  in  the  constitution,  but 
on  the  contrary  that  the  power  has  been  es  industria  enlarged. 

Heretofore,  the  remedial  writs  could  be  issued  in  appealable  cases 
only.  Now,  under  the  newly  created  supervisory  jurisdiction,  they 
are  available  in  cases  where  the  judgment  is  final  in  the  lower 
court. 

The  construction  which  we  give  to  the  provisions  of  the  code 
of  practice,  which  regulate  the  remedial  writs,  is  not  only  sustained 
on  reason  and  principle,  but  it  has  its  support  in  judicial  author- 
ity. The  point  was  made  by  another  zealous  litigant  more  than 
thirteen  years  ago,  and  it  was  settled  in  the  same  sense  in  the  case  of 
the  State  ex  rel.  Southern  Bank  v.  The  Judge  of  the  Eighth  District 
Court  of  New  Orleans. 

We  quote  the  following  language  from  that  decision :  "When 
in  the  progress  of  a  suit,  a  necessity  arises  from  the  application 
of  these  writs,  and  the  supreme  court  is  not  in  session,  ex  necessitate 
rci,  the  chief  justice  or  the  senior  justice  present  should  grant  the 
l^rovisional  order.  Any  other  interpretation  of  the  law  would  do 
violence  to  the  clear  intention  of  the  law  maker  and  to  justice." 

The  provisional  order  in  this  case  was  issued  by  the  senior 
associate  justice,  when  the  court  was  not  in  session,  and  when  he 
was  the  only  justice  present  in  the  state,  and  our  conclusion  is  that 
the  order  emanates  from  a  competent  authority,  then  vested  with  the 
whole  power  of  the  court  pro   hac  vice,   including  the   power  of 


536  STATE  EX   REL.  DILWORTH  V.   BRAUN   ET  AL.  §    4 

coercing  obedience  to  its  mandate  in  case  of  resistance  or  refractory 

conduct  on  the  part  of  those  to  whom  it  was  directed.     *     *     * 

( That  portion  of  the  opinion  deaHng  with  jurisdiction  is  omitted.) 

In    accord. — State    v.    Rombauer,    104    Mo.    619. 

See   also   Withers  v.   Commissioners,  3   Brev.    (S.   Car.)    83;   Tucker,  Ex 
parte,  2S  Ark.  567;  Mayo  v.  James,  12  Grat    (Va.)   17. 


5.     The  answer  or  return. 

STATE  EX  REL.  V.  ELKIN. 
1895.     Supreme  Court  of  Missouri.     130  Mo.  90;  supra,  p.  00. 


Lord  Chancellor  Eldon. — "But  whether  right  or  wrong,  it 
is  clear,  this  court  can  hardly  hear  an  inferior  court  discuss  with 
it  for  any  purpose  but  to  have  the  writ  superseded,  the  question 
whether  it  issued  improvidently.  That  is  a  question  for  the  con- 
sideration of  the  court,  out  of  which  the  writ  issued,  not  of  the 
court  to  which  it  is  addressed.  It  is  of  the  last  consequence  not 
to  suffer  a  breath  of  doubt  to  hang  upon  this  point ;  that  an  inferior 
court  is  not  to  disobey  any  of  the  writs  issuing  out  of  this  court 
upon  their  notion  that  the  writ  issued  improvidently.  Therefore 
though  this  writ  might  have  improvidently  issued,  I  should  with- 
out doubt  have  held  a  proceeding  in  breach  of  it  a  contempt." 
Iveson  V.  Harris,  7  Vesey  Jr.  251. 


6.     Demurrer. 

STATE   EX   REL.   DTEWORTTT  v.   RRAUN  et  al. 
1872.     Supreme    Court    of    Wisconsin.     31    Wis.    600. 

Lyon,  J. —  *  *  *  The  motion  to  quash  the  rcttirn  to  the 
alternative  writ  of  prohibition  is  in  the  nature  of  a  demurrer  thereto ; 
and.  like  a  demurrer,  it  reaches  back  to  the  first  defective  pleading. 
If.  therefore,  the  relation  does  not  state  a  cause  for  issuing  a  writ  of 
I'rohibition,  it  may  be  quashed  on  this  motion. 

We  have  come  to  the  conclusion  tliat  llu-  relation  docs  not  state 
facts  sufficient  to  entitle  the  relator  to  the  relief  demanded  by  him, 
anrl  hence  that  the  same  must  be   quashed.     '''     *     * 

(' Rcuu'iiiulcr  nf  ()])inion  on  this  i)oint  oinittetl.) 


CHAPTER  IV. 

CERTIORARI. 

Section  1. — Definition  and  General  Principles  Governing  the  Writ. 
I.     Definition  and  function  of  the  writ. 

"A  CERTIORARI  is  an  original  writ  issuing  out  of  chancery,  or  the 
King's  Bench,  directed  in  the  king's  name,  to  the  judges  or  officers 
oTTnTei-ibr  courts,  commancHng  them  to  return  the  records  of  a  cause 
depending  before  them,  to  the  end  the  party  may  have  the  more 
sure  and  speedy  justice  before  him,  or  such  other  justices  as  he 
sliall  assign  to  determine  the  cause."  2  Bacon's  Abr.  Art.  Cert.  p. 
162. 

"!J^ie  writ  of  certiorari  is  used  for  the  purpose  of  removing 
not  only  legal,  but  likewise  equitable  proceedings;  for  when  an 
equitable  right  is  sued  for  in  an  inferior  court  of  equity,  and  by 
reason  of  the  limited  jurisdiction  of  the  court,  the  defendant  cannot 
have  complete  justice,  or  the  cause  is  without  the  jurisdiction  of 
the  inferior  court ;  the  defendant  may  file  a  bill  in  chancery  praying 
this  writ  to  remove  the  cause  into  the  court  of  chancery.  *  *  *" 
2  Bacon's  Abr.  Art.  Cert.  p.  166. 

"The  writ  of  certiorari  is  an  original  writ,  and  issueth  sometimes 
out  of  the  chancery,  and  sometimes  out  of  the  king's  bench,  and  lieth 
where  the  king  would  be  certified  of  any  record  which  is  in  the 
treasury,  or  in  the  common  pleas,  or  in  any  other  court  of  record 
which  is  in  the  treasury,  or  before  the  sheriff  and  coroners,  or  of 
a  record  before  commissioners,  or  before  the  escheator ;  then  the 
king  may  send  that  writ  to  any  of  the  said  courts  or  offices,  to 
certify  such  record  before  him  in  banco,  or  in  the  chancery  or  before 
other  justices,  where  the  king  pleaseth  to  have  the  same  certified, 
and  he  or  they  to  whom  or  who  the  certiorari  is  directed,  ought 
to  send  the  same  record  according  to  the  tenor  of  the  writ,  and  as 
the  writ  doth  command  him ;  and  if  he  or  they  fail  so  to  do,  then  an 
alias  shall  be  awarded,  and  afterwards  a  pluries,  vel  cansam,  nobis 
signiticcs,  and  afterwards  an  attachment,  if  a  good  cause  be  not  re- 
turned upon  the  pluries,  wherefore  they  do  not  send  the  record. 

Also  the  king  might  by  such  writ  of  certiorari  send  for  the 
tenor  of  the  record,  or  for  the  tenor  of  the  tenor  of  the  record  ;  at  his 
election,  and  those  writs  ought  for  to  be  obeyed,  and  the  records 

537 


^38  DEFINITION     AND    GENERAL     I'lU  X  CI  I'LES.  §     I 

sent,  as  the  writ  comuiandeth  them  to  do  ;  and  the  form  of  some  of 
those  writs  here  followeth— 

The  king  to  his  beloved  and  faithful  R.  greeting :  Because  for 
some  certain  causes  we  will  be  certified  upon  the  record  and  process 
of  outlawry  against  I.  in  the  count}'  of  T.  pronounced  before  you  and 
your  companions,  our  justices  assigned  to  hear  and  determine  divers 
felonies  in  the  county  aforesaid :  We  command  you  that,  etc.,  you 
send  the  tenor  of  the  record  and  process  aforesaid ;  or  thus,  that 
without;  delay  that  you  send  the  tenor  of  the  record  and  process  of 
outlawry  aforesaid,  with  all  things  touching  them,  to  us  in  our 
chancery  under  your  seal  distinctly,  and  openly  and  this  writ. 
Witness,  etc.  (together  with  a  number  of  other  forms  of  the  writ)." 
Fitzherbert.  Xafiira  Brcvium,  554. 

"Sect.  22.  It  seems  agreed  at  this  day,  that  regularly  the  court 
of  king's  bench  having  a  general  superintendency  over  all  the  other 
courts  of  criminal  jurisdiction,  wdiether  they  be  of  ancient  or  newly 
created  jurisdiction,  may  award  a  certiorari  as  well  as  the  court  of 
chancery,  to  remove  the  proceedings  before  any  such  courts  unless 
the  statute  or  charter  which  erects  them  expressly  gives  them  an 
absolute  judicature,  exempt  from  such  superintendency ;  as  the 
statutes  concerning  the  commissioners  of  the  Cambridgeshire  Fens, 
etc.,  are  said  by  some  to  have  done. 

"Sect.  23.  And  accordingly  it  seems  to  be  agreed,  that  such  a 
certiorari  lies  to  justice  in  eyre ;  to  justices  of  gaol-delivery ;  to  the 
court  of  a  countv  palatine ;  and  to  the  college  of  physicians,  having 
a  general  power  by  statute  to  fine  and  imprison  for  certain  offences ; 
to  justices  of  the  peace,  etc.,  even  in  such  cases  in  wdiich  they  are 
empowered'by  statute  finally  to  hear  and  determine  ;  and  also  to  com- 
missioners of  sewers,  notwithstanding  the  clause  in  13  Eliz.  c.  9,  §  5, 
'that  the  said  commissioners  shall  not  be  compelled  to  make  any  cer- 
tificate or  return  of  their  commissions,  or  of  their  ordinances,  laws, 
or  doings,  etc,,'  for  it  hath  been  adjudged,  that  this  is  intended  to 
exempt  them  from  returning  their  orders  into  chancery,  as  by  the 
statute  of  23  Flenry  8,  c.  5,  they  were  obliged  to  do,  and  shall  not 
l>e  construed  to  take  away  the  superintendency  of  the  court  of  king's 
bench  without  ex])ress  words. 

"It  lies  also  to  remove  a  presentment  in  a  court  leet,  and  when 
removed  the  presentment  is  traversable ;  to  remove  examinations 
taken  before  justices  of  the  peace  in  pusuance  of  the  2  &  3  Ph. 
&  M.  c.  10;  to  a  jurisdiction  created  by  private  act  of  ])arliament ; 
to  remove  proceedings  before  commissioners  of  bankrupts  ;  to  remove 
proceedings  in  an  action  from  the  court';  of  the  counties  palatine; 
'r.  remove  an  information  before  justices  of  assize  against  a  parson 
for  nr»n-rcsidencc ;  to  remove  an  inflictment  for  not  doing  statute 
labour  on  the  highway;  or  for  not  repairing  a  bridge;  to  the  quarter 
sessions  of  a  corporation     So  also  to  r;move  proceedings  before 


§     I  CEUnOKARI,    IN    GENERAL.  539 

two  justices;  as  orders  of  conviction  on  the  conventicle  act,  22  Car. 
2.  c.  I ;  an  order  on  an  appeal  from  scavenger's  rate;  an  order  of 
bastardy  if  applied  for  in  six  months ;  so  also  it  lies  to  remove  an 
inquisition  taken  by  the  sheriff  under  a  private  act  of  parliament, 
and  the  verdict  and  judgment  thereon.  *  *  *  "  4  Hawkins, 
Pleas  of  the  Crown,  c.  27. 


FARMINGTON  RIVER  WATER  POWER  COMPANY  v. 
COUNTY  COMMISSIONERS. 

1873.     Supreme  Judicial  Court  of  Massachusetts.     112  Mass. 

206. 

(J?KEItIQN__for__a  writ  of  certiorari  to  quash  the  proceedings  of  the 
county  cornmissioneTs  "of  "the  County  of  Berkshire  in  refusing  to 
c^Cale^  town  tax  assessed  upon  the  petitioner  by  the  assessors  of  the 
to  wnof_C)ti§. ) 

~Cray7c7j. — By  the  general  statutes  c.  145,  §  8,  "writs  of  certio- 
rari, to  correct  errors  in  proceedings  that  are  not  according  to  the 
course  of  the  common  law  shall  be  issued  from  and  returnable  to  the 
Supreme  Judicial  Court  according  to  the  practice  heretofore  estab- 
lished." The  determination  of  this  case  must  be  governed  by  the 
law  and  practice  so  established,  which  do  not  seem  to  have  been  kept 
in  mind  by  cither  party  to  these  proceedings. 

A  writ  of  certiorari  (when  not  used  as  ancillary  to  any  other  pro- 
cess) is  in  tlie  nature  of  a  writ  of  error,  addressed  to  an  inferior 
courtjor  tribunal  -.^■Iiosc  procedure  is  not  according  to  the  course  of 
tfie'covunoii  laiv.  Alter  the  writ  has  been  issued  and  the  record 
certified  in  obedience  to  it,  the  court  is  bound  to  determine,  upon  an 
inspection  of  the  whole  record,  whether  the  proceedings  are  legal  or 
erroneous ;  but  the  granting  of  the  writ  in  the  first  instance  is  not  a 
matter  of  righty  and  rests  in  Tlie  discretion  of  the  court,  and  the 
\vnt  W'iirffof  bFgTanted  unless  thej)etitioner  satisfies  the  court  that_ 
siJBstantial  justice  requires  it.  Commonwealth  v.  Sheldon,  3  Mass. 
iKS".  Ex  parte  AA'eston,  11  Mass.  417.  Lees  v.  Childs,  17  Mass. 
351.  Freetown  v.  County  Commissioners,  9  Pick.  46;  Rutland  v. 
County  Commissioners,  20  Pick.  71 ;  Gleason  v.  Sloper,  24  Pick. 
181.  Marblehead  v.  County  Commissioners,  5  Gray,  451,  453. 
Pickford  v.  Mayor  &  Aldermen  of  Lynn,  98  Mass.  491. 

A  writ  of  certiorari  lies  only  to  correct  errors  in  law,  and  not  to 

rc\'ise  the  decision  of  a  question  of  fact  upon  the  evidence  intro- 

(liicecTat  the  lieafing    in  the  inferior  court,  or  to  examme  the  suffi- 

cieiicy  of  the  evidence  to  support  the  finding,  unless  objection  was 

TalceiTTo  the  evidence  for  incompetency,  so  as  to  raise  a  legal  ques- 


540       FARMTNGTOX   RIVER   WATER   POWER  CO.   V,   COUNTY   COm'rS.       §     I 

tion.  Hayward's  case^  lO  Pick.  358.  Nightingale's  case,  11  Pick. 
168.  Cousins  V.  Cowing,  23  Pick.  208.  Stratton  v.  Commonwealth, 
10  Met.  217.  In  Nightingale's  case,  Mr.  Justice  Wilde  said:  "We 
can  not  on  certiorari  examine  the  merits  of  a  cause  and  set  aside  a 
verdict  as  against  evidence."  And  even  if  incompetent  evidence  was 
admitted,  the  court  in  its  discretion  will  refuse  a  certiorari  if  the  fact 
in  question  was  clearly  proved  by  other  evidence.  Cobb  v.  Lucas, 
15  Pick.  I.    Gleason  v.  Sloper,  24  Pick.  181. 

The  refusal_of  the  county  commissioners  to  abate  a  tax_can  not  be 
revised  upon  certiorari,  except  for  an  erroneous  ruling  in  matters  of 
law.  Gibbs  v.  County  Commissioners,  19  Pick.  298.  CHTcopee  v. 
County  Commissioners,  16  Gray,  38.  Lowell  v.  County  Commis- 
sioners, 6  Allen  131.  The  legislature  has  evidently  considered  the 
county  commissioners  a  more  appropriate  tribunal  to  decide  ques- 
tions of  fact  in  the  matter  of  taxation  than  a  court  of  common  law 
or  a  jury. 

The  provisions  of  the  general  statute,  c.  145,  §  9,  re-enacting  the 
statute  of  1858,  c.  109,  and  empowering  the  court,  upon  certiorari, 
to  "enter  such  judgment  as  the  court  below  should  have  rendered, 
or  make  such  order,  judgment  or  decree  in  the  premises  as  law  and 
justice  require."  does  not  enlarge  the  authority  of  the  court  to  exam- 
ine the  matters  passed  on  below,  but  merely  enables  it,  after  examin- 
ing the  case  accordmg  to  the  rules  of  law,  to  embody  the  result  in  a 
new  judgment,  framed  so  as  to  secure  the  rights  of  all  parties,  in- 
stead of  being  limited,  as  it  was  before  the  statutes  were  amended  in 
this  respect,  to  quashing  or  affirming  the  judgment  below.  Com- 
monwealth v.  West  Boston  Bridge,  13  Pick.  195,  196.  Lowell  v. 
County  Commissioners,  6  Allen  131.  Haverhill  Bridge  Proprietors 
V.  Coimty  Commissioners,  103  Mass.   120. 

If  a  question  of  law  is  raised  at  the  hearing  before  an  inferior 
court,  whose  proceedings  are  not  according  to  the  course  of  the 
common  law  and  not  the  subject  of  appeal  or  exception,  it  is  proper 
to  state  on  the  record  the  facts  proved  and  the  ruling  in  matters  of 
law  upon  them.  Commonwealth  v.  Walker,  4  Mass.  556,  558.  And 
if  this  is  not  done,  the  inferior  court  may  be  required  by  this  court 
to  certify,  together  with  its  record,  a  statement  of  the  ruling 
made  upon  the  point  set  out  in  the  petition  for  a  certiorari.  Men- 
don  v.  County  Commissioners,  2  Allen,  463. 

PiUt  whencer  the  case  was  within  the  jurisdiction  of  the  inferior 
tribunal,  the  petitioner  for  a  writ  of  certiorari  can  not  be  permitted 
to  intrr)flnce  evidence  to  contradict  or  vary  its  statement,  in  its  recr 
ord  or  return  of  its  proceedings  and  decision,  l^md  v.  Medway, 
Quincy,  193.  Commonwealth  v.  Blue  TTill  Turnpike.  5  Mass.  420. 
Rutland  v.  Comity  Commissioners,  20  Pick.  71.  Mendon  v.  County 
Commissir)ners,  5  Allen,  13.  Charlcstown  vs.  Count}'  Commission- 
ers. 109  Mass.  270. 

It   is  rinlv   wlicrc  extrinsic  fvidencc  has  been   introduced,   at   the 


§     I  CEKlIOkAKI,   IN    CENKUAL.  54I 

hearing  upon  the  petition,  in  support  of  the  decision  below,  and  by 
way  of  showing  that  substantial  justice  does  not  require  the  proceed- 
ings to  be  quashed,  that  like  evidence  may  be  introduced  by  the  party 
petitioning  for  the  writ,  and  then  upon  the  same  point  only.  New 
Salem,  petitioner,  6  Pick.  470.  Rutland  v.  County  Commissioners, 
20  Pick.  71.  Gleason  v.  Sloper,  24  Pick.  181.  Stone  v.  Boston,  2 
Met.  220,  228. 

A  writ  of  certiorari  must  be  addressed  to  the  court  having  the 
custody  and  control  of  the  record  of  the  proceedings  sought  to  be 
quashed.  Commonwealth  v.  Winthrop,  10  IMass.  177.  It  can  only 
be  granted  after  notice  and  opportunity  to  show  cause  against  it ; 
and.  if  granted  wiihout  such  notice,  will  be  quashed  as  improvidently 
issued.  Commonwealth  v.  Downing,  6  Mass.  72.  When  the  pro- 
ceedings were  before  county  commissioners,  notice  of  the  petition 
should  be  given  to  them,  the  answer  or  return  to  the  petition  must 
])e  the  joint  act  of  the  whole  present  board,  and  the  separate  answer 
of  one  commissioner  can  not  be  received.  Plymouth  v.  County  Com- 
missioners, 16  Gray,  341. 

The  uniform  practice  of  this  court  for  many  years,  as  shown  in 
Liumerous  reported  cases,  has  been  to  hear  the  whole  case  upon  the 
(petition,  in  order  to  avoid  unnecessary  delay  and  expense  to  the  par- 
ties, and  to  enable  the  court  to  deal  with  the  substantial  justice  of 
the  case,  untrammelled  by  merely  formal  and  technical  defects  in  the 
record. 

No  better  illustrations  of  the  course  of  proceedings  upon  applica- 
tion for  a  writ  of  certiorari  are  to  be  found  in  our  books  than  are 
afforded  by  the  two  cases,  upon  which  the  petitioners  in  this  case 
principally  rely,  of  Rutland  and  Mendon  v.  County  Commissioners  of 
Worcester. 

In  the  case  of  Rutland,  20  Pick.  71,  the  town  of  Rutland  petitioned 
for  a  writ  of  prohibition  to  the  county  commissioners,  to  prevent  their 
issuing  a  warrant  against  the  town  for  the  expenses  of  making  a 
highway  laid  out  by  the  commissioners  through  that  town,  until  a 
petition  for  a  writ  of  certiorari  to  quash  their  proceedings  could  be 
heard,  and  the  court  said :  "A  petition  for  a  writ  of  certiorari  is 
well  understood  to  be  addressed  to  the  discretion  of  the  court.  When 
the  record  is  before  the  court  on  the  return  of  the  writ,  the  court  will 
look  only  at  the  record ;  for  this  reason  it  will  be  futile  to  admit  evi- 
dence to  contradict  the  record  on  the  petition  for  a  certiorari;  but  it 
being  within  the  discretion  of  the  court  to  grant  or  refuse  the  writ, 
evidence  extrinsic  to  the  record  may  properly  be  received  to  show 
that  no  injustice  has  been  done,  and  that  a  certiorari  ought  not  to  be 
issued.  The  petitioners,  in  the  case  before  us,  will  in  the  first  place 
exhibit  the-  record  and  point  out  in  what  particulars-  they  consider  it 
erroneous  or  defective :  and  then  the  respondents  inay  prove  by  ex- 
trinsic evidence  that  no  iniustice»lias  been  done, 'that  if  the  proceed- 


542        FARMINGTON  RIVER  WATER  POWER  CO.  V.  COUNTY  COM'rS.         §     I 

ings  shall  be  quashed,  the  parties  can  not  be  placed  in  statu,  quo,  or 
that  for  any  good  reason  the  certiorari  ought  not  to  be  granted.  If 
such  evidence  shall  be  offered  by  the  respondents,  the  petitioners  will 
of  course  have  the  right  to  rebut  it  by  like  evidence."  Testimony  was 
then  introduced  by  both  parties  upon  that  point  only ;  and  the  court, 
upon  considering  the  testimony  in  connection  with  the  record  and 
the  proposed  petition  for  a  certiorari,  held  that  substantial  justice 
did  not  require  a  writ  of  certiorari  to  be  issued,  and  dismissed  the  pe- 
tition. 

In  the  case  of  Mendon,  the  petition  for  a  writ  of  certiorari  to 
compel  the  county  commissioners  to  certify  the  record  of  their 
proceedings  confirming  the  laying  out  of  a  town  way  by  the  se- 
lectmen of  Mendon,  alleged  that  the  commissioners  at  the  hearing 
before  them  made  an  erroneous  ruling  upon  a  question  of  the  bur- 
den of  proof,  w^hich  was  not  stated  in  their  record.  No  answer  be- 
mg  filed  to  the  petition,  it  was  heard  upon  the  admission  of  the  re- 
spondents, in  the  nature  of  a  demurrer,  that  the  facts  therein  alleged 
were  true,  and  the  court  directed  a  writ  ot  certiorari  to  issue,  con- 
taining a  precept  to  the  commissioners  to  certify  their  record  to  this 
court,  with  a  statement  of  the  ruling  made  by  them  on  the  point  set 
out  in  the  petition.  2  Allen,  463.  Before  a  writ  of  certiorari  was 
issued,  it  was  agreed  by  the  counsel  that  an  answer  to  the  petition 
might  be  filed,  and  the  case  be  considered  by  the  court  as  if  the 
writ  had  been  issued  and  the  case  had  been  heard  upon  the  writ  and 
answer ;  and  the  commissioners  accordingly  filed  an  answer  contain- 
ing a  statement  of  their  rulings  in  detail.  To  this  answer  the  pe- 
titioners filed  a  replication,  denying  some  of  the  facts  stated  in 
the  answer,  alleging  that  it  did  not  contain  all  the  material  facts 
necessary  to  the  determination  of  the  case,  and  praying  that  they 
might  be  heard  upon  the  facts.  But  the  court  held  that  the  state- 
ment of  the  commissioners  was  conclusive,  and  being  satisfied  that 
their  decision,  as  stated  by  them,  upon  the  point  complained  of  by 
the  petitioners,  was  substantially  correct,  held  that  no  good  cause 
was  shown  for  vacating  their  proceeding?  v')r  for  remitting  the  case 
to  a  new  hearing,  and  adjudged  the  proceedings  to  be  good.  5  Allen, 
13.  One  passage  in  the  opinion  of  Chief  Justice  Bigelow,  in  2  Allen, 
-^65.  might  at  first  sight  l)e  thought  to  imply  that  in  a  hearing  upon 
a  writ  of  certiorari,  when  issued  the  court  should  not  be  governed  by 
strict  and  exact  rules  of  law;  but  it  is  manifest  from  the  context 
that  he  had  in  mind  only  the  hearing  upon  the  petition  for  the  writ ; 
arifl  he  prefaced  the  second  opinion,  in  5  Allen  15,  by  declaring  that 
by  the  first  decision  "the  court  did  not  intend  to  change  in  any  essen- 
tial degree  the  mode  of  proceeding  or  the  i^ractice  in  cases  of  this 
nature." 

Tn  the  present  case,  the  record  of  the  r<imniissioners,  a  copy  of 
which  is  annexed  to" tRel)elitTon  for  a  ccrl!orart;^(ijy^s~not  state^aii;- 


§    I  CERTIORARI,   IN    CENERAL.  543 

ruling  of  the  coiiimissioners,  except  their  final  decision  that  they  do 
noTHrid^in  fact  or  in  law  that  the  tax  or  any  part  thereof  should  be 
abated,  and  their  order  tha:  the  petition  for  an  abatement  should  be 
dismissed.  The  annexing  of  a  full  report  of  the  evidence  taken 
HeTore'them,  as  a  part  of  their  report,  was,  to  say  the  least,  irregular, 
and  unnecessarily  encumbered  their  record.  The  petition  for  a  cer- 
tiorari  does  not  specify  any  error  in  the  admission  or  rejection  of 
eviclence,  nor  pray  for  a  certificate  of  any  ruling  made  by  the  com- 
missioners and  not  appearing  on  their  record.  The  answer  proposed 
to  be  filed  does  not  state  any  facts  but  those  found  by  the  commis- 
sioners at  the  hearing  before  them.  The  town  therefore  irregularly 
joined  in  the  answer  of  the  commissioners  ;  and  the  name  of  the  town 
should  be  stricken  out  of  that  answer,  leaving  it  to  stand  as  a  return 
in  writing  by  the  commissioners  of  their  findings,  which  can  not  be 
disputed  in  matter  of  fact,  and  in  which  the  ijetitioners  have  failed 
to  show  any  error  in  matter  of  law. 

The  evidence  admitted  by  the  commissioners,  which  is  now  argued 
to  have  been  incompetent,  is  of  two  classes.  The  one  consists  of  tes- 
timony as  to  the  benefits  derived  by  other  parties  in  their  propertv 
and  business  from  the  water  power  created  by  the  reservoir  dam  of 
the  petitioners.  This  was  competent  to  show  the  value  of  the  reser- 
voir by  reason  of  its  capacity  for  valuable  use,  and  to  disprove  the 
petitioners'  allegation  that  it  was  of  merely  nominal  value.  Pingree 
V.  County  Commissioners,  102  Mass.  76.  The  other  consists  of  an^ 
swers  to  questions  put  to  the  petitioner's  witnesses  on  cross-examina- 
tion. This  might  be  admitted  in  the  discretion  of  the  commissioners 
by  way  of  testing  the  credibility  of  the  witnesses.  It  does  not  appear 
that  the  commissioners  allowed  improper  weight  or  efifect  to  any 
of  the  evidence. 

The  necessary  conclusion,  following  as  nearly  as  inay  be  the  terms 
of  the  report  on  which  the  case  has  been  reserved  for  our  determina- 
tion, is  that  the  commissioners  have  the  right  to  file  the  answer  ten- 
dered, after  amending  it  by  striking  out  the  name  of  the  town ;  that 
the  answer,  thus  amended,  constitutes  a  good  defence,  which  can 
not  be  impeached  or  controlled  by  the  petitioners  and  no  further  pro- 
ceeding is  open  to  them,  and  that  their 

Petition  for  a  certiorari  be  dismissed- 


STATE  EX  REL.    REIDER    v.    THE    MONITEAU    COUNTY 

COURT. 

1891.     Court  of  Appeals  of  Missouri.     45  Mo.   App.  387.^ 

Ellison,  J.— On  application  of  relators  a  w^rit  of  certiorari  was 
^f!H.^^^-^?"^^^"^^^".?.  ^^^  countv  court  of  Moniteau  county  to  transmit 


544      STATE   EX    REL.    REIUER   V.    THE    MONITEAU    COUNTY    COURT.       §     I 

to  this  court  the  record  of  the  proceedings  had  in  that  court  in  the 
matter  "of  the  apphcation  of  Geo.  R.  Keister  &  Co.  for  a  dramshop 
license.  In  obedience  to  this  writ  there  has  been  returned  to  us  a  full 
record  of  such  proceedings  including  the  original  papers. 

By  reference  to  the  case  of  the  State  ex  rel.  Harrah  v.  Cauthorn, 
40  Mo.  App.  94,  it  will  be  seen  that  in  cases  of  this  nature  we  have 
nothing  to  do  with  the  propriety  of  the  action  of  the  county  court. 
If  the  record  of  the  proceeding  before  us  discloses  tliat  the  court  ha'd 
jurisdiction  in  the  matter  of  this  particular  application,  and  that  it 
Has  not  exceeded  its  powers  in  respect  thereto,  then  our  iiKjuiry  ends. 
So,  whether  the  petitioners  were  in  fact  tax  'paying  citizens,  su'cli 
as  is  required  by  law,  or  whether  they  were  a  majority,  or  whether 
some  names  on  the  petition  were  forged,  were  questions  of  fact  for 
the  county  court  and  which  we  had  no  right  to  determine.  The  office 
of  the  writ  of  certiorari  is  not  always  stated  with  accuracy.  _  On 
such  writs  t1ie  merits  are  not  reviewed,  nor  can  mistake  of  fact 
or  law  be  inquired  into.  And,  though  it  partakes  of  the  naTure  of  a 
writ  of  error,  it  is  not  so  broad  as  that ;  and,  furthermore,  should  not 
issue  to  a  court  from  which  an  appeal  may  be  taken,  or  to  which  a 
writ  of  error  will  lie.  Burdsall  v.  Phillips,  17  Wend.  464.  It  is 
frequently  too  broadly  stated  to  be  solely  confined  to  inquiry  of  juris- 
diction in  the  inferior  tribunal,  as  in  Johnson  v.  Moss.  20  Wend. 
145  ;  Ex  parte  Mayor  of  Albany,  23  Wend.  277.  In  the  case  of 
State  ex  rel  l\'asdale  v.  Smith,  loi  Mo.  175,  the  statement  is  that 
the  writ  reaches  matters  on  the  faoe  of  the  record  which  are  juris- 
dictional in  their  nature.  In  Chi.,  R.  I.  &  P.  R.  R.  Co.  v.  Young, 
96  Mo.  39.  it  is  stated  that  the  writ  will  reach  errors  which  might 
not  be  fatal  in  a  collateral  proceeding.  In  2  Burr.  1040,  it  is  said 
that  the  writ  is  is.sued  to  see  whether  the  limited  jurisdictions  have 
exceeded  their  "bounds." 

From  the  cases  last  cited  we  are  led  to  belie\e  llial  ///,•  true  func- 
tion of  this  common  laic  zcrit  is  -cncrally  to  prrrrnl  inferior  tribu- 
nals, tvhere  there  is  no  appeal  or  zvrit  of  error^Jrcin  r.vccrdiiii;  their 
jurisdiction;  hut  that  it  is  not  confined  to  cases  lelwrr  there  is  an 
entire  zvant  of  jurisdiction;  it  may  be  resorted  to  where,  Jiai'ui^  ju- 
risdiCtion~lWc  ti-ibunal  makes  an  order  exeeedjiii^  its  pollers.  Stokes 
V.  Kharr,  II  Wis.  389;  Talmadge  v.  rotter,  12  Wis.  317. 

The  first  objection  on  the  part  of  the  relators  which  we  shall  notice 
is,  that  it  docs  not  appear  from  the  record  that  the  petitioners  for 
the  license  composed  "a  majority  of  the  assessed  lax  i)a\  nig- citizens^ 
of  the  town  of  Tipton  and  of  the  block  in  whieli  the  dranishoi^  was  to 
be  located.  R.  S.  T889,  §  457^).  The  words  of  the  petitioners  in  the 
blork  arc:  "Wc.  the  tmdorsifrncfl  .-'ssesscl  resident  citizens  and  tax- 
payers in  block' r.  in  said  city  of  Tipton.  Missouri,  respectfully  re- 
quest." etc.  The  words  of  the  petitioners  from  the  town  at  large  are 
as  follows:    "Wc.  the  undersigned  assessed  taxpayers  in  the  citv  of 


§     1  CEKTIOKAKI,    IN    GENERAL.  545 

Tipton,  Missouri,  respectfully  request,"  etc.  It  is  not  necessary  for 
us  to  say  in  this  case  that  in  the  granting  of  a  dramshop  license, 
where  no  private  rights  are  involved,  it  is  requisite  to  jurisdiction 
that  the  record  of  the  county  court  should  aiSirmativeJy  show  those 
f hTiigs~wh i ch  are  required  to  exist  before  a  license  shall  issue.  Nor 
(conceding  that  it  is  so  requisite)  is  it  necessary  to  decide  whether 
the  allegations  above  quoted  meet  that  requirement.  The  reason  that 
it  is  not  necessary  to  decide  these  matters  is  that  the  application  for 
license  filed  in  the  county  court  in  this  case  does  recite,  in  the  lan- 
guage of  the  statute,  that  the  petitions  contain  a  "majority  of  the 
assessed  resident  taxpaying  citizens."  of  both  the  block  and  the 
town  of  Tipton.  So  conceding  here  Cthough  not  deciding)  as  wr.s 
decided  in  State  ex  rel.  Harrah  v.  Cauthom,  supra,  that  the  record 
must  affirmatively  show  the  statutory  essentials  to  granting  the 
license  in  order  to  confer  jurisdiction,  it  does  so  appear  from  the  ap- 
plication quoted  above  and  which  we  regard  as  part  of  the  record  of 

the  county  court,  under  the  views  set  forth  in  the  Cauthorn  case. 
*     *     * 

(So  much  of  the  opinion  as  relates  to  the  statutory  procedure  in 
granting  dramshop  licenses  is  omitted.) 


SMITH  V.  BOARD  OF  SUPERVISORS. 
1870.     Supreme  Court  of  Iowa.    30  la.  531. 

(ApPEAL_from  an  nrder_disrnissinp-  petition  for  certiorari  to  re- 
spondents who,  as  was  alleged,  had. erroneously  and  illegally  raised 
tirc  asses'sment  of  plaintiff's  property.) 

~'  Miller,  J. — Upon  the  coming  in  of  the  return  to  the  writ,  '!the 
plaintiff  filed  a  motion,  ob>.ecting4o- the  sufficiency  Qllhe-ieturn.  and 
moved  that  defendants  be  required  to  return  the  evidence  upon 
which  tHey' acted,  in  full."  This  motion  was  overruled;  plaintiff  ex- 
cepted" and  assigned  this  ruling  as  error. 

Certiorari  is  a  common  law  writ,  issuing  from  superior  court  di; 
reeled  to  one  of  inferior  jurisdiction,  commanding  the  latter  to  cer- 
tlTy^iid^Tetufn  to  the  former  the  record  in  the  particular  case,  i 
Bouv.  Law  Diet.  215.  and  authorities  there  cited.  //  differed Jr am. a 
writ  of  error  in  this,  that  the  certiorari  removed'  the  cause ^  zvhile 
a  writ  oj  error  oJily  superseded  the  proceedings  in  the  court  below. 

Under  the"Te"visTon  of  i860,  the  writ  of  certiorari  is  granted  in  all 
cases  where  an  inferior  tribunal,  board  or  officer,  exercising  judicial 
fiTnctions,  is  aTteged  to  have  exceeded  its  jurisdiction,  or  is  otherwise 
acting  illegaTiy7when,  in  the  judgment  of  the  court  applied  to  for  the 


546  SMITH  V.   BOARD  OF   SUPERVISORS.  §    I 

writ,  there  is  no  other  plain,  speedy  and  adequate  remedy.     Rev. 
§  3487;  Edgar  v.  Greer,  14  la.  211. 

There  are  two  grounds  upon  which  this  writ  may  be  based,  either 
of  \v!TictT  "is  sufficient :  i.st.  That  the  inferior  court,  board  or  officer^ 
is  alleged  to  have  exceeded  its  jurisdiction.  2d.  Tliat  such  court, 
board  or  officer  is  otherwise  acting  illegally. 

There  can  be  no  doubt  that  the  board  of  supervisors  had  jurisdic- 
tion over  the  subject  matter  in  this  case.  By  section  739  of  the  Re- 
vision of  i860,  "the  board  of  supervisors  of  each  county  shall  con- 
stitute a  board  for  the  equalization  of  the  assessments,  and  have 
power  to  equalize  the  assessments  of  the  several  persons,  and  town- 
ships of  the  county,  substantially  in  the  same  manner  as  is  required 
of  the  state  board  of  equalization,  to  equalize  among  the  several 
counties  of  the  state,  so  far  as  applicable,  at  their  regular  meetings  in 
June,  in  each  and  every  year,"  etc. 

The  census  board  constitutes  the  state  board  of  equalization  (Rev. 
of  i860,  §  742),  and  have  power  to  "equalize  the  valuation  of  real 
property  among  the  several  counties  and  towns  in  the  state,  in  the 
following  manner : 

"i.  They  shall  add  to  the  aggregate  valuation  of  real  property 
of  each  county,  zvhich  they  shall  believe  to  be  valued  belova  its  proper 
valuation,  such  per  centum  in  each  case  as  will  raise  the  same  to  its 
proper  valuation." 

"2.  They  shall  deduct  from,  the  aggregate  valuation  of  real  prop- 
erty of  each  county,  which  they  believe  to  be  valued  above  its  proper 
valuation,  such  per  centum  in  each  case  as  will  reduce  the  same  to 
its  proper  valuation." 

The  state  board  is  thus,  by  the  statute,  empowered  to  add  to,  or 
deduct  from,  the  assessments  of  real  property  in  the  several  counties, 
which  they  believe  are  below  or  above  the  proper  valuation.  Wheth- 
er the  valuation  in  any  particular  county  is  too  high  or  too  low,  rests 
in  their  belief,  in  their  judgment  and  sound  discretion.  The  county 
boards  have  "power  to  equalize  the  assessments  of  the  several  per- 
sons and  townships  in  their  respective  counties,  substantially  in  the 
same  manner  as  is  required  of  the  state  board,  so  far  as  applicable." 
If  the  board  of  supervisors  believe  an  assessment  of  a  particular 
"person  or  tov/nship"  to  be  too  low,  they  are  authorized  to  raise  it. 
And  if  they  believe  another  to  be  above  its  proper  valuation,  they 
have  power  to  reduce  it.  That  the  board  may  not  receive  evidence 
to  enable  them  to  form  a  correct  judgment  in  tJic  premises,  we  do  not 
hold ;  on  the  contrary,  we  arc  of  the  opinion  that  they  may  resort  to 
any  proper  mode  of  information  that  will  enable  them  to  make  a  just 
and  proper  equnlization  of  the  assessments  within  their  county.  But 
they  are  not  rccjuircd  to  do  so  in  all  cases. 

The  members  of  the  board,  coming  from  different  parts  of  the 
count'-,   may,  and   generally   are,   sufficiently   acquainted   with   the 


§    I  CERTIORARI,   IN   GENERAL.  547 

value  of  the  property  in  the  different  portions  of  the  county,  with- 
out calling  in  other  witnesses  or  procuring  further  evidence  than 
their  own  knowledge  of  the  facts  involved.  This  power  of  equaliza- 
tion being  conferred  upon  the  board,  to  be  exercised  Ijy  them  upon 
tKeir  judgment,  and  belief  of  the  facts  in  each  particular  case,  their 
discretion  cannot  be  controlled  or  reviewed  on  certiorari.  While 
they  act  within  their  jurisdiction  and  commit  no  illegalities,  their 
proceedings,  though  erroneous,  cannot  be  corrected  on  certiorari. 

The  ground  of  complaint  in  this  case  is  that  the  board  raised 
some  of  the  assessments  too  high.  We  have  seen  that  the  law  con- 
fers upon  them  the  power  to  raise  or  reduce  the  assessments  as  they 
may  believe  them  too  low  or  too  high.  The  complaint,  then,  is,  that, 
in  exercising  their  lawful  authority  on  a  subject  within  their  jurisdic- 
tion, the  board  has  committed  errors  of  fact.  These  are  not  such 
illegalities  as  may  be  corrected  on  certiorari.  R.  R.  Co.  v.  Whipple, 
23  111.  108;  Commissioners,  etc.,  v.  Supervisors  of  Carthage,  27  id. 
140;  Low  V.  R.  R.  Co.  18  id.  140. 

The  record,  as  certified  and  returned,  does  not  show  that  the 
board  received  any  evidence  upon  which  they  acted  when  they 
changed  the  assessments.  The  record  was  certified  in  full  in  the  re- 
turn. It  was  not  made  to  appear  in  any  manner  that  any  of  the 
facts  connected  with  the  action  of  the  board,  were  not  certified  up. 
The  motion,  therefore,  was  properly  overruled,  for  this  reason  as 
well  as  the  reason  that  the  evidence  (if  any)  upon  which  the  board 
acted,  was  not  pertinent  to  any  inquiry  before  the  court.  The  court 
had  no  authority  to  review  the  evidence  produced  before  the  board, 
and  upon  which  they  acted  in  forming  their  judgment  of  matters  of 
fact. 

For  the  same  reason  there  was  no  error  in  the  refusal  of  the 
court  to  receive  the  testimony  of  witnesses  to  prove  the  facts  al- 
leged in  the  plaintiff's  petition.  The  office  of  the  petition  or  affida- 
vit, as  the  statutes  designate  it  (Rev.*§  3490)  is  to  obtain  the  writ. 
When  the  writ  has  been  issued  and  returned,  the  trial  is  had  upon 
the  record.  Rev.  §  3493.  To  allow  witnesses  to  be  examined  in  cer- 
tiorari proceedings  would  be  to  convert  the  proceedings  into  a  trial 
de  novo  on  the  merits,  as  on  appeal,  which  is  not  the  office  of  the 
writ. 

Whether  an  appeal  would  lie  from  the  action  of  the  supervisors, 
we  need  not  decide.  We  are  clear,  however,  that  their  decision  can 
not  be  corrected  on  certiorari. 

The  judgment  of  the  district  court  is 

Affirmed. 


54^  HIRAM    WILSON   V.    MARY   LOWE.  §    I 

HIRAM  WILSON  v.  MARY  LOWE. 
1869.     Supreme  Court  of  Tennessee.     7  Caldwell,  153. 

Andrew  McLain,  J.,  delivered  the  opinion  of  the  court. 

In  this  case  Wilson  filed  his  petition  for  certiorari  and  supersedeas,, 
alleging  that  the  defendant  in  error  had  recovered  a  judgment 
against  him  before  a  justice  of  the  peace,  and  that  execution  had  is- 
sued and  had  been  levied  on  his  land,  there  being  no  personal  prop- 
erty on  which  to  levy. 

He  further  states  in  his  petition,  that  he  had  previously  registered 
his  declaration  of  intention  to  take  the  benefit  of  the  law  in  reference 
to  a  homestead,  and  that  the  sheriff  had  summoned  three  freeholders 
to  set  apart  his  homestead  ;  and  that  they  had  proceeded  to  do  so,  and 
makes  exhibit  to  his  petition  their  certificate,  which  had  been  placed 
in  his  possession  in  pursuance  of  the  law  on  the  subject. 

He  charges  that  great  injustice  had  been  done  him ;  that  the 
land  set  apart  was  not  worth  more  than  three  hundred  dollars,  when 
he  was  entitled  to  have  an  amount  of  land  worth  five  hundred  dollars, 
set  apart ;  that  a  brother  or  nephew  of  one  of  the  commissioners 
owned  a  portion  of  the  judgment  referred  to  in  this  case. 

He  prays  for  writs  of  certiorari  and  supersedeas,  that  these  pro- 
ceedings may  be  removed  into  the  circuit  court,  and  that  the  levy  and 
the- execution  be  stayed  and  superseded. 

His  petition  was  dismissed  on  motion  of  the  defendant  in  error 
from  which  judgment  of  the  court  the  plaintiff  in  error  has  appealed 
to  this  court. 

Has  the  circuit  court  jurisdiction  to  grant  relief  in  this  case? 

Section  10  of  article  6,  of  the  constitution  of  Tennessee  is  in  these 
words:  "The  judges  or  justices  of  such  superior  courts  of  law  as 
the  legislature  may  establish,  shall  have  power  in  all  civil  cases,  to 
issue  writs  gf  certiorari  to  remove  any  cause  or  transcript  thereof 
from  any  inferior  jurisdiction  into  said  court,  on  sufficient  cause, 
su])ported  by  oath  or  affirmation." 

It  will  be  here  observed  that  a  plain  distinction  is  made  between 
su])erior  courts  of  law  and  an  inferior  jurisdiction. 

Section  3123  of  the  code,  provides  that  the  writ  of  certiorari  may 
be  granted  wherever  authorized  by  law  ;  and,  also,  in  all  cases  where 
an  inferior  tribunal,  board  or  officer  exercising  judicial  functions, 
has  exceeded  the  jurisdiction  conferred,  or  is  acting  illegally,  when, 
in  the  judgment  of  the  court,  there  is  no  other  plain,  speedy  or  ade- 
f|uate  rcmcfly. 

Sertir)n  3124:  Certiorari  lies,  on  suggestion  of  dimimition  ;  when 
no  appeal  is  given  ;  as  a  substitute  for  an  apjieal ;  instead  of  audita 
ijucrcUt :   instead   (if  writ   of  error. 


§     I  CERTIOKAKI,   l.N    GEMSRAL.  549 

In  the  case  of  Mayor  and  Aldermen  v.  Pearl,  1 1  Hum.  249,  this 
writ  was  used  to  bring  into  the  circuit  court  a  distress  warrant  issued 
by  the  recorder  of  "the  Mayor  and  Aldermen  of  Nashville  ;"  which, 
on  motion  in  the  circuit  court,  was  quashed. 

In  that  case,  the  judge  delivering  the  opinion  of  the  court,  re- 
marked that,  from  the  earliest  period  of  our  judicial  history,  the  cer- 
tiorari has  had  given  to  it  a  much  more  extended  application  than  in 
"England,  and  it  has  been  used  for  purposes  wholly  unknown  to  the 
common  law. 

It  has  been  adopted  with  us  as  tl>e  almost  universal  method  by 
which  the  circuit  courts,  as  courts  of  general  jurisdiction,  both  civil 
and  criminal,  exercise  control  over  all  inferior  jurisdictions,  however 
constituted  and  whatever  their  course  of  proceeding,  as  well  where 
they  have  attempted  to  exercise  a  jurisdiction  not  conferred,  as  where 
there  has  been  an  irregular  or  erroneous  exercise  of  jurisdiction  ;  and 
in  criminal  proceedings  as  well  as  in  civil. 

In  the  case  of  Durham  v.  United  States,  4  Haywood,  181,  this 
writ  was  used  to  bring  into  the  circuit  court  the  proceedings  of  a 
court  martial. 

Now,  in  the  present  case,  we  think  there  can  be  no  doubt  that 
the  board  of  commissioners  who  set  apart  the  homestead  to  plaintiff 
in  error  were  in  the  exercise  of  a  judicial  function.  They  were  de- 
termining the  rights  of  the  parties  in  interest  vuider  the  law.  This 
being  so,  we  think  this  proceeding  may  be  brought  by  certiorari  into 
the  circuit  court;  and  if  these  commissioners  have  transcended  their 
functions  and  powers,  or  either  of  them  was  incompetent  to  act  as 
commissioner,  the  proceeding  may  be  quashed  on  motion  in  the  cir- 
cuit court. 

It  is  alleged  in  the  petition,  that  one  of  these  commissioners  was  a 
brother  or  imcle  to  one  of  the  owners  of  the  judgment. 

The  code  provides  that  the  officer  shall  summon  three  disinterested 
freeholders,  not  connected  with  the  parties.  The  statements  of  the 
petition  must,  on  motion  to  dismiss  be  taken  as  true.  If  these  state- 
ments be  true,  one  of  these  commissioners  was  incompetent,  and  the 
proceeding  is  illegal  a-nd  may  be  quashed. 

We  think  his  honor  erred  in  sustaining  the  motion  to  dismiss  the 
petition.  The  petition,  it  is  true,  does  not  as  definitely  pray  for  the 
relief  which  we  have  indicated  he  would  be  entitled  to  upon  estab- 
lishing the  truth  of  the  allegations  of  his  petition ;  but  the  purport 
of  the  petition  is  that  the  proceeding  was  illegal ;  and  it  is  plain  that 
relief  from  the  action  of  these  commissioners  is  the  object  of  the 
petition. 

Let  the  judgment  of  the  circuit  court  be  reversed  and  the  cause 
remanded. 


SS^  DRAINAGE  COMMISSIONERS  V.  GRIFFIN  ET  AL.  §    T 

See  also  on  general  functions  of  the  writ. — People  v.  County  Judge, 
40  Cal.  479;  People  v.  Betts,  55  N.  Y.  600;  State  v.  Judge,  43  La.  Ann. 
825;  Donahue  v.  Will  Co.,  100  111.  94;  State  v.  State  Board,  etc.,  3  S. 
Dak.  338;  Pedrorena,  In  re,  80  Cal.  144;  McAllilley  v.  Horton,  75  Ala. 
491;  State  V.  Circuit  Court,  108  Wis.  77;  Sherry  v.  O'Brien,  22  R.  I.  319; 
Watson  V.  Plainfield,  60  N.  J.  L.  260;  Howell  v.  Allen,  106  Ga.  16;  Lyons 
V.   Green,  68  Ark.  205 ;    Spencer  v.   Bloom,    149   Pa.   St.    106. 


2.  Issued  only  as  against  officers  and  tribunals  exercising  judi- 
cial functions. 

DRAINAGE  COMMISSIONERS  v.  GRIFFIN  et  al. 
1890.     Supreme  Court  of  Illinois.     134  111.  330;  25  N.  E.  995. 

Bailey,  J.  This  was  a  common  law  writ  of  certiorari,  brought  to 
review  certain  proceedmgs'of  the  commissioners  of  the  Mason  and 
Tazewell  special  drainage  district.  Said  district  was  organized  in  the 
year  1882,  under  the  provisions  of  the  act  entitled  "An  act  to  pro- 
vide for  the  organization  of  drainage  districts,  and  to  provide  for 
the  constrtiction,  maintenance  and  repair  of  drains  and  ditches  by 
s]iecial  assessment  on  the  property  benefited  thereby."  approved 
May  29,  1879,  and  originally  embraced  42,000  acres  of  land  situate  in 
several  townships,  in  the  counties  of  Mason  and  Tazewell.  _  Alter 
said  district  had  been  organized,  and  had  constructed  its  mainland 
lateral  ditches,  and  smaller  drains,  and  had  levied,  and  in  part  col- 
lected, several  assessments  upon  the  lands  in  the  district  for  the 
construction  thereof,  and  had  also  incurred  a  heavy  indebtedness 
for  which  it  had  issued  its  bonds,  it  was  claimed  that  other  lands 
adjoining  the  district  at  various  points  were  actually  involved  in  the 
same  system  of  drainage,  and  that  the  owners  of  such  lands  depended 
upon,  and  were,  to  some  extent,  availing  themselves  of  the  ditches 
and  (Irains  thus  constructed.  A  petition  was  thereupon  prepared  and 
signed  by  certain  of  the  adult  owners  of  lands  in  the  district,  pray- 
ing for  an  enlargement  of  the  boundaries  of  the  district  by  annex- 
ing thereto  the  several  adjacent  tracts  of  land  situated  as  above  de- 
scribcd.     =!:     *     * 

*  *  '''  Said  procfcdings  resulted  in  an  order  by  such  comn-us- 
sioncrs  enlarging  the  boundaries  of  said  district  in  accordance  with 
tlic  prayer  of  the  i)etition.  Various  of  the  owners  of  the  lands  thus 
annexed  j)rescntcd  to  the  circuit  courts  of  TazcwclLxoiuity  their 
pftition  for  a  certiorari,'  alleging,  among  other  things,  that.Jhe 
l)i"i(c-dings  by  which  the  boundaries  of  said  district  had  been  eji- 
larjj'ed  were  irregular,  aiul  without  jurisdiction  f>r  lawful  aiithoritj,: 


§    I  CERTIORARI^   IN   GENERAL.  55 1 

on  the  part  of  said  commissioners,  and  praying  that  the  record  of 
said  proc"eeding-s  be  brought  before  said  court,  and  that  said  order  of 
arme'xatiofrio  or  extension  of  the  boundaries  of  said  special  drain- 
age district,  and  the  entry  thereof  in  the  records  of  said  district,  be 
reversed,  set  aside  and  annulled.  On  said  petitioii  a  \wr it  of  certiorari^ 
was  duly  .issued  and  served,  and  thereupon  said  commissioners  made 
return  to  said  writ  by  certifying  to  said  court  the  record  of  said 
proceedings.  On  inspection  of  said  record,  the  court  entered  judg- 
ment ([uashing  the  same,  and  ordering  that  it  forever  be  held  for 
nauQ-ht.  Said  judgment  was  affirmed  by  the  appellate  court  (28  111. 
Kpp.  561 ),  and  an  appeal  has  now  been  taken  to  this  court.  *  *  * 
It  is  strenuously  urged  that  certiorari  is  not  the  proper  remedy,  the 
contention  being  that  the  petitioners  should  have  resorted  to  an  in^ 
formation  in  the  nature  of  a  quo  zvarranto.  We  need  not  pause  to 
determine  whether  quo  warranto  would  lie  or  not,  as  we  know  of  no 
rule,  which  in  this  case,  would  make  that  remedy  necessarily  exclu- 
sive, even  if  it  should  be  held  to  be  a  proper  or  available  remedy. 
The  only  question  is  whether  the  alleged  defects  in  the  proceedings 
for  the  enlargement  of  the  drainage  district  are  such  as  can  be 
reached  and  remedied  by  writ  of  certiorari,  and  this  question  is  in 
no  way  dependent  upon  whether  a  writ  of  quo  warranto  might  not 
also  lie  to  oust  the  drainage  commissioners  of  their  control  over  the 
territory  annexed,  or  to  dissolve  the  organization  of  the  drainage  dis- 
trict so  far  as  it  applies  to  that  territory.  The  writ  of  certiorari 
is  a  well  known  common  law  writ,  and  in  England  the  court  of  king's 
bench  has  always  been  in  the  practice  of  awarding  it  to  inferior  ju- 
risdictions ;  commanding  them  to  send  up  their  records  for  inspec- 
tion. By  adopting  the  common  law,  we  have  adopted  this  as  a  recog- 
nized legal  remedy,  and  in  this  state  any  court  exercising  general, 
common  law  jurisdiction  has,  unless  expressly  forbidden  to  do  so 
by  the  statute,  an  inherent  authority  to  issue  it.  People  v.  Wilkinson. 
13  111.  660;  Miller  v.  Trustees,  88  111.  26;  3  Am.  &  En.  Enc.  of  Law, 
tit.  '^Certiorari."  Neither  in  England  nor  in  this  state  is  it  held  to  be 
a  writ  of  right,  but  it  issues,  in  proper  cases,  only  upon  application  to 
the  court,  on  proper  cause  shown.  We  have  repeatedly  held  that 
said  writ  may  be  awarded  to  all  inferior  tribunals  and  jurisdictions 
where  it  appears  that  they  have  exceeded  the  limits  of  their  juris- 
diction, or  in  cases  where  they  have  proceeded  illegally,  and  no  ap- 
peal is  allowed,  and  no  other  mode  is  provided  for  reviewing  their 
proceedings.  Gerdes  v.  Champion,  108  111.  137;  Doolittle  v.  R.  R. 
Co.  14  111.  381 ;  R.  R.  Co.  V.  Whipple,  22  111.  105 ;  R.  R.  Co.  v.  Fell, 
id.  333.  The  purpose  of  the  writ  is  to  have  the  entire  record  of  the 
inferior  tribunal  brought  before  the  superior  court  to  determine 
whether  the  former  had  jurisdiction  or  had  exceeded  its  jurisdic- 
tion, or  had  failed  to  proceed  according  to  the  essential  requirements 
of  law.    The  trial  is  solely  by  inspection  of  the  record,  no  inquiry  as 


552  DRAINAGE  COMMISSIONERS  V.  GRIFFIN  ET  AL.  §    I 

to  any  matter  not  appearing  by  the  record  being  permissible,  and,  if 
the  want  of  jurisdiction  or  illegality  appears  by  the  record,  the  prop- 
er judgment  is  that  the  record  be  quashed.  Undoubtedly,  where  the 
controversy  involves  the  investigation  of  facts  not  appearing  upon 
the  record,  certiorari  is  not  the  proper  remedy.  Thus,  if  in  the  pres- 
ent case,  the  right  to  have  the  proceedings  by  which  the  lands  in 
question  were  annexed  to  the  drainage  district  set  aside,  and  the 
drainage  commissioners  ousted  of  the  corporate  authority  they  now 
claim  to  exercise  over  said  lands,  depended  on  facts  which  could 
only  be  established  by  evidence  de  hors  the  record,  the  writ  of  cer- 
tiorari would  manifestly  be  of  no  avail.  It  may  be  admitted  that  in 
such  case  quo  ivarranto  would  be  the  exclusive  remedy.  But  here 
the  want  of  jurisdiction,  if  it  appears  at  all,  is  upon  the  face  of^e 
record.  If,  then,  the  proceedings  of  the  drainage  commissioners  en- 
larging the  boundaries  of  the  district  constitute  a  subject  matter 
which  may  be  reviewed  by  certiorari,  that  must  be  held  to  be  an  ap- 
propriate remedy.  Tlic  i^cjicral  rule  seems  to  be  that  this  zvrit  lies 
only  to  inferior  tribunals,  and  officers  e.x-ercising  jiLdicial  functions, 
and  the  act  to  he  reviewed  must  be  judicial  in  its  nature,  and  not 
ministerial  or  legislative.  Lock  v.  Lexington,  122  Mass.  290;  State 
V.  Mayor,  34  Minn.  250,  25  N.  W.  449 ;  In  re  Wilson,  32  Minn.  145, 
19  N.  W.  723 ;  Robinson  v.  Supervisors,  16  Cal.  208;  Ex  parte  Fay, 
15  Pick.  243:  Stone  v.  Mayor,  etc.,  25  Wend.  157;  Esmeralda  Co. 
v.  District  Court,  18  Nev.  438,  5  Pac.  64;  Thompson  v.  Multomah 
County,  2  Or.  34.  But  it  is  not  essential  that  the  proceedings^^shqiijd 
be  strictly  and  technically  "judicial"  in  tJie  sense  in  ivhicK  that  zwrd 
is  used  when  applied  to  courts  of  justice.  It  is  sufficient  if  they  are 
what  is  sometimes  called  "quasi-judicial."  The  body  of  ofticers  act- 
ing need  not  constitute  a  court  of  justice  in  the  ordinary  sense.  If 
they  are  invested  by  the  legislature  zvith  the  power  to  decide  on  the 
property  rights  of  others,  they  act  judicially  in  making  their  decision, 
whatever  may  be  their  public  character.  Robinson  v.  Sui)ervisors, 
supra.  Thus_i,ti.s  h^eld  that  this  writ  lies  to  rexieiK-lhe  proceedings 
of  supervisors,  commissioners,  city  councils,  etc.,  in  opening,  alter- 
ing or  discontinuing  public  streets  and  highways  as  to. their  legality 
or  regularity,  though  not  as  to  the  question  of  die  expediency  of 
such  imi)rovcments.  3  Am.  &  Hug.  Enc.  of  Law.  ^  65,  and  authori- 
ties cited  in  note  4.  So  also  in  some  states  it  has  been  held,  subject 
to  the  foregoing  qualification,  to  be  the  proper  writ  to  correct  illegali- 
ties in  the  levying  of  taxes  and  local  assessments  by  assessors,  com- 
missioners, etc.  fid.),  though  in  this  state  it  has  been  refused  where 
the  defense  of  illegality  could  be  made  at  the  hearing  of  the  applica- 
tir>ti  for  judgment  (Pease  v.  City  of  Chicago,  21  111.  500).  The 
writ  has  also  been  held  to  lie  to  review  the  action  of  school  trustees 
in  niriting  anrl  in  dividing  school  districts  (Miller  v.Trustees.  88  111. 
2^>;  State  v.  Whitforcl,  54  Wis.  150,  ii   N.  W.  424)  ;  or  of  a  town 


§     I  CERTIORARI,   IN    GENERAL.  553 

board  in  removing  an  assessor  (Merrick  v.  Town  of  Arbela,  41 
Mich.  630,  2  N.  W.  922)  ;  or  of  a  city  council  in  removing  a  city  offi- 
cer (Mayor  v.  Shaw,  16  Ga.  172)  ;  or  of  a  city  council  in  granting  a 
ferry  license  (Ex  parte  Fay,  15  Pick.  243)  ;  or  of  a  board  of  super- 
visors in  ordering  an  election  to  relocate  a  county  seat  (Harrick  v. 
Carpenter,  6  N.  W.  574)  ;  or  of  a  board  of  supervisors  in  creating 
the  office  of  clerk  of  said  board,  and  raising  certain  salaries  which 
had  been  fixed  by  statute  (Robinson  v.  Supervisors,  16  Cal.  208). 
The  foregoing  are  a  few  of  the  many  cases  where  this  writ  has  been 
held  to  He,  and  sufficiently  illustrate  the  rule  above  stated. 

The  proceedings  by  which  the  boundaries  of  the  dramage  district 
were  enlarged  by  the  drainage  commissioners  were,  at  least  in  most 
of" their"  important  features,  judicial  in  their  character.  The  com- 
missioners were  required  to  ascertain  and  determine  from  evidence 
whether  the  requisite  number  of  the  adult  owners  of  land  in  the 
district  had  signed  the  petition  for  the  annexation  of  the  adjoin- 
ing lands  and  whether  the  signers  were  the  owners  of  the  requisite 
proportion  of  the  lands  embraced  within  the  district.  They  were 
also  required  to  ascertain  and  determine  from  evidence  whether 
the  lands  sought  to  be  annexed  to  the  district  were  involved  in  the 
same  system  of  drainage  and  required  for  outlets  the  drains  of 
the  district.  When  these  facts  were  determined  judicially,  and  not 
till  then,  were  the  commissioners  authorized  by  the  statute  to 
enter  their  order  annexing  said  lands.  From  their  decision  no 
appeal  was  given,  nor  were  any  other  means  provided  by  the 
statute  for  reviewing  their  proceedings.  In  every  point  of  view 
then  the  case  comes  within  that  class  of  cases  where  certiorari 
is  an  appropriate  remedy.  But,  as  the  appellants  insist  that  a 
different  rule  has  been  announced  by  this  court  in  various  of  its 
decisions,  we  will  briefly  consider  some  of  the  cases  to  which  we  are 
referred  as  sustaining  that  contention.  Renwick  v.  Hall,  84  111. 
162;  Keigwm  v.  Commissioners,  115  111.  347,  5  N.  E.  575;  Evans  v. 
Lewis,  121  111.  478,  13  N.  E.  246  and  Samuels  v.  Commissioners, 
125  111.  536,  17  N.  E.  829,  were  all  cases  in  chancery,  and  it  was  held 
that  there  was  no  jurisdiction  in  a  court  of  equity,  for  the  reason 
that  there  was  a  complete  and  adequate  remedy  at  law,  and  that  the 
legal  existence  of  the  several  corporations  involved  in  those  cases 
could  be  determined  by  an  information  in  the  nature  of  a  quo  zvar- 
ranto.  Trumbo  v.  People,  75  111.  561  ;  People  v.  Newberry,  87  111. 
41 ;  Osborn  v.  People,  103  111.  224  and  Blake  v.  People,  109  111. 
504,  were  proceedings  for  the  collection  of  either  school  taxes  or  spe- 
cial assessments  and  the  principle  decided  in  those  cases  was  that  the 
various  school  districts  and  drainage  districts  in  question  in  those 
several  suits  were  at  least  corporations  dc  facto,  and  that  the  legality 
of  the  organization  of  a  corporation  could  not  be  attacked  collater- 
ally. Aldermen  v.  Directors,  91  111.  179,  was  trespass,  and  the  plain- 
tiffs were  directors  of  a  de  facto  district ;  and  the  same  rule  was 


554  DRAINAGE  COMMISSIONERS  V.  GRIFFIN  ET  AL.  '§    I 

there  declared.  In  Hinze  v.  People,  92  111.  406,  it  was  held  that 
quo  warranto  would  lie  against  persons  who  assume  to  hold  offices 
supposed  to  be  created  by  a  law  claimed  to  be  invalid  by  reason  of 
being  in  contravention  of  the  constitution;  and  in  People  v.  Board, 
1 01  111.  308.  it  was  held  that  quo  ivarranto  also  lies  against  a  corpo- 
ration which  undertakes  to  exercise  powers  which  it  does  not  possess. 
There  is  nothing  decided  in  any  of  these  cases  which  shows  or  tends 
to  show  the  validity  of  either  of  the  propositions  insisted  upon  by 
the  appellants  in  this  case.  All  that  is  determined  by  those  cases 
may  be  admitted,  and  yet  non-constat  that  the  common  law  writ  of 
certiorari  does  not  lie  in  the  present  suit.  No  doubt  some  expressions 
were  used  in  the  opinions  of  several  of  those  cases  from  which  it 
might  be  inferred  that  an  information  in  the  nature  of  a  quo  war- 
ranto was  the  only  mode  of  testing  the  legality  of  the  formation  of 
an  existing  de  facto  corporation,  but  that  question  did  not  arise  and 
was  not  decided  in  those  cases.  However,  in  the  case  of  Lees  v. 
Commissioners,  125  111.  47,  16  N.  E.  915,  it  was  expressly  held  that 
the  common  law  writ  of  certiorari  cannot  be  resorted  to  for  the 
purpose  of  determining  whether  a  corporation  has  a  legal  existence, 
and  that  the  validity  of  its  organization  can  be  questioned  only  by 
quo  zvarranto.  But  there  is  this  marked  distinction  between  that  case 
and  this:  There  the  corporate  existence  itself  of  a  quasi-mwmcx^dX 
body  was  sought  to  be  challenged  by  certiorari,  while  here  such  ex- 
istence is  fully  admitted,  and  the  only  thing  sought  to  be  done  is  to 
call  in  question  the  validity  of  an  order  of  a  municipal  body  admitted 
to  be  a  corporation  both  de  facto  and  de  jure,  extending  the  bounda- 
ries of  the  drainage  district.  It  seems  eminently  proper  and  in  con- 
sonance with  the  intention  of  the  statute  and  the  rules  and  analogies 
of  the  common  law,  that  a  proceeding  the  object  of  which  is  to  for- 
feit or  destroy  that  corporate  life  which  emanates  solely  from  the 
sovereign  power  of  the  state,  should  be  instituted  by  the  attorney 
general  or  state's  attorney  of  the  proper  county.  It  is  said,  in  sec- 
tion 778,  -Ang.  &  A.  Cor.,  citing  in  that  behalf,  Rex  v.  Pasmore,  3 
Term.  R.  244,  245,  and  Regents,  etc.,  v.  Williams,  9  Gill  &  J.  365, 
that  ''quo  zvarranto  is  necessary,  where  there  is  a  body  corporate  de 
facto,  wlio  take  upon  themselves  to  act  as  a  body  corporate,  but,  from 
some  defect  in  their  constitution,  can  not  legally  exercise  the  powers 
they  affect  to  use."  It  appears,  however,  from  the  same  section,  and 
from  the  authorities  there  cited,  that  where  there  is  a  legally  exist- 
ing cor])oration,  capalilc  of  acting  which  has  been  guilty  of  an  abuse 
of  power,  or  of  its  franchises,  then,  not  only  will  an  information  in 
ihc  nature  of  a  quo  warranto  lie,  l)ut  scire  facias  as  well.  Nor  do 
we  perceive  any  good  reason  why  a  municipal  body,  which  has  ex- 
cocflcd  its  jurisdiction  and  proceeded  illegally,  may  not,  on  sound 
legal  princijiles,  be  proceeded  against  by  quo  zvarranto,  by  scire 
facias,  or  by  the  comnKjn  law  writ  of  certiorari,  indifferently,  as  the 


§    I  CERTIORARI,  IN   GENERAL.  555 

one  or  the  other  may  afford  a  proper  and  sufficient  remedy.  All  of 
these  several  writs  are  direct  remedies  afforded  by  the  law,  and,  in 
respect  to  neither  of  them  can  it  be  said  that  it  is  a  collateral  attack 
upon  the  legal  existence  or  organization  of  the  corporation.  As  has 
already  been  suggested,  this  court  has  expressly  held,  in  Miller  v. 
Trustees,  88  111.  26,  that  the  common  law  writ  of  certiorari  was  an 
appropriate  remedy  to  bring  before  the  circuit  court  for  review  the 
proceedings  of  a  board  of  trustees  of  schools  consolidating  two 
school  districts  into  one ;  and  that  seems  to  be  going  quite  as  far,  if 
not  further,  than  is  demanded  by  the  requirements  of  the  present 
case.     *     *     * 

But  it  appears  that  the  several  landowners  upon  whose  peti- 
tion the  writ  of  certiorari  was  issued  all  appeared  at  the  hearing  of 
the  petition  for  the  enlargement  of  the  boundaries  of  the  district,  and 
urged  their  objection  to  the  granting  of  that  petition;  and  it  is  now 
contended  that  they  waived  all  defect  of  notice  thereby,  and  should 
not  be  heard  to  object  to  the  jurisdiction  of  the  commissioners.  Some 
of  these  parties  objected  to  a  consideration  of  said  petition  by  the 
commissioners  upon  the  express  ground  that  the  statutory  notice 
had  not  been  given,  though  none  of  them  limited  their  objections  to 
that  point,  but  all  urged  other  objections  affecting  the  merits  of  the 
petition.  J[t  is  probably  true  that,  by  appearing  generally  and  con- 
testing the  petition  on  its  merits,  tfiey  waived  any  defect  of  notice  to 
themselves,  and,  so  far,  as  such  waiver  went,  they  must  now  be  held 
to  be  l)Ound  by  it,  and  to  have  subjected  themselves  to  all  the  legal 
consequences  resulting  therefrom.  If  jurisdiction  of  their  persons, 
and  through  them  of  the  particular  lands  of  which  they  were  the 
owners,  were  all  that  was  required  making  the  order  of  the  commis- 
sioners granting  the  petition  binding  so  far  as  they  were  concerned, 
it  must  be  admitted,  we  think,  that  we  have  no  standing  here  to  ob- 
ject that  the  statutory  notice  was  not  given.  But  their  relations  to 
the  subject  matter  of  the  petition  were  such  as  to  give  them  the 
right  to  insist  that  thie  annexation  of  the  lands  proposed  to  be  in- 
cluded in  tlie  district  should  be  valid  as  a  whole.  All  of  said  lands 
upon  the  theory  of  the  petitioners  were  involved  in  the  same  system 
of  drainage,  and  therefore  if  brought  into  the  district  by  valid  an- 
nexation proceedings,  liable  to  contribute  their  due  proportion  of  the 
expense  of  constructing  and  keeping  in  repair  the  ditches  and  drains 
of  the  district,  thus  lightening  to  the  amount  of  such  contributions, 
the  burden  resting  upon  all  the  other  lands  in  the  district.  The  sub- 
ject may  be  illustrated  thus:  Supposing  the  proceeding  was  for  the 
original  organization  of  a  drainage  district  embracing  lands  belong- 
ing to  an  hundred  different  proprietors.  No  sufficient  notice  having 
been  given,  five  of  said  proprietors  owning  but  one  twentieth  of  the 
lands  in  the  proposed  district,  appear  generally  and  contest  the  or- 
ganization o-f  the  district,  but  their  objections  being  overruled,  an 


556  IX  RE  SALINE  COUNTY  SUBSCRIPTION.  §     I 

order  is  entered  assuniing  to  organize  a  district  embracing  the  lands 
of  an  hundred  proprietors.  Such  order  would  be  invalid  as  to  nine- 
teen-twentieths  of  the  land  and  could  impose  no  burdens  thereon ; 
but,  if  the  five  owners  who  appeared  should  be  held  to  be  estopped  to 
insist  upon  such  invalidity,  the  organization  would,  as  a  legal  con- 
sequence, be  held  valid  as  to  them,  and  all  the  expenses  and  burdens 
of  the  district  would  fall  upon  their  lands.  The  true  view  we  think 
is  that  each  land  owner  in  the  district,  whether  he  appeared  and  con- 
tested the  organization  of  the  district  or  not,  would  have  such  interest 
in  the  question  of  the  legality  of  the  organization  as  to  the  lands  of 
the  other  owners,  as  would  give  him  the  right,  in  any  proper  proceed- 
ing brought  to  test  the  question,  to  allege  want  of  jurisdiction  of  the 
persons  of  the  other  land  owners  in  the  district,  and  of  the  lands 
owned  by  them,  and  to  insist  that,  for  that  reason,  the  entire  organi- 
zation of  the  district  was  illegal  and  void.  The  same  reasoning  ap- 
plies with  equal  force  to  a  proceeding  like  the  present  for  the  annexa- 
tion of  lands  to  a  district  already  formed.  In  this  case  large  portions 
of  the  lands  sought  to  be  annexed  belonged  to  owners  who  did  not 
appear  or  contest  the  petition,  some  of  whom  appear  to  have  been 
minors.  As  to  them  the  annexation  proceedings , were  clearly  illegal, 
and  void,  and,  being  void  as  to  them,  w^e  are  of  the  opinion  that  they 
were  void  in  toto.  We  therefore  think  that  the  circuit  court  properly 
entered  a  judgment  quashing  said  proceedings,  and  that  said  judg- 
ment was  properly  affirmed  by  the  appellate  court.  The  judgment  of 
the  appellate  court  will  be  affirmed. 


IN  RE  SALINE  COUNTY  SUBSCRIPTION,  THOMPSON  et  ai„ 

PETITIONERS. 

1869.     Supreme  Court  of  Missouri.    45  Mo.  52. 

Bliss.  Judge,  delivered  the  opinion  of  the  court. 

The  county  court  of  Saline  County  subscribed  for  $400,000  of  the 
stock  of  the  Louisiana  and  Missouri  River  Railroad  Company,  and 
have  issued  bonds  in  the  payment  of  said  stock.  Philip  IT.  Thonip- 
son  and  other  taxpayers  of  said  county  sued  out  of  lliis  court  a  writ^ 
of  certiorari  directed  to  the  judges  of  said  court,  cliarqing  a  want 
of  authority  to  make  the  subscrijition  and  issue  llic  bunds. 

Before  considering  any  other  ([ucslion  the  i^reliminary  one  must 
l)c  fk-cidcd,  whether  certiorari  will  lie  in  a  case  of  tin's  kind.  ".A 
certiorari  is  an  r)riginal  writ  issued  out  of  cliancery  or  the  king's 
bench,  directed  in  tlie  kind's  name,  I0  the  judges  or  officers  of  in- 
ferior courts,  cfimmanding  tbcni  I0  return  the  records  of  a  cause  de- 
pending brfore  them,  to  thu  cud  that  the  part\'  may  liavc  more  sure 


§     I  CERTIORARI,    IN    GENERAL.  557 

and  speedy  justice."  (Bac.  Abr.  Certiorari,  A.)  The  matter  not 
being  regulated  by  statute  in  Missouri,  either  as  to  the  cases  in  which 
this  writ  may  issue  or  the  practice  under  it,  we  are  left  entirely  to  the 
general  law.  The  writ  isisues  only  to  inferior  courts  and  to  review 
only  judicial^action.  Was,  then,  the  action  of  the  county  court  of 
Saline  county7 Th"  subscribing  to  the  stock  of  the  railroad  company 
and  issuing  bonds,  a  judicial  action?  Judicial  action  is  an  adjuclica-' 
tion  upon  the  rights  of  parties  who  in  general  appear  or  are  brought 
before  the  tribunal  by  notice  or  process,  and  upon  whose  claim  some 
decision  or  judgment  is  rendered.  It  implies  impartiality,  disinter- 
estedness, a  weighing  of  adverse  claims,  and  is  inconsistent  with  dis- 
cretion on  the  one  hand — for  the  tribunal  must  decide  according  to 
tilt  Ta\\-  and  rights  of  the  parties — or  with  dictation  on  the  other,  for 
in  the  first  instance  it  must  exercise  its  own  judgment  according  to 
law,  and  not  act  under  a  mandate  from  another  power.  The  tribunal 
is  not  always  surrounded  with  the  machinery  of  a  court,  nor  will 
such  machinery  necessarily  make  its  action  judicial.  A  county  court 
is  certainly  a  judicial  body  for  some  purposes,  but  no  more  so  for 
the  name,  nor  for  the  fact  that  it  has  a  seal  and  clerk  and  keeps  a 
record.  The  character  of  its  action  in  a  given  case  must  decide 
whether  that  action  is  judicial,  ministerial  or  legislative,  or  whether 
it  be  simply  that  of  a  public  agent  of  the  county  or  state,  as  in  its 
varied  jurisdiction  it  may  by  turns  be  each. 

The  authorities  all  agree  that  the  action  to  be  reviewed  by  the  writ 
must  be  judicial,  but  they  are  not  wholly  consistent  as  to  what  action 
is  judicial.  I  find,  however,  a  great  preponderance,  both  in  the 
reasoning  of  the  judges,  and,  as  I  think,  in  the  weight  of  the  author- 
ity, against  the  proposition  that  proceedings  like  those  of  the  county 
court  under  consideration  can  be  treated  as  judicial.  There  are  but 
two  cases  in  our  reports  where  the  writ  of  certiorari  as  an  original 
writ  was  issued  from  this  court.  The  first  is  Rector  v.  Price,  i  Mo. 
198,  where  the  principal  question  was  the  right  to  issue  it  under  our 
then  constitution ;  and  the  other  is  the  Hannibal  &  St.  Joseph  Rail- 
road Company  v.  Morton,  27  Mo.  317,  to  review  the  action  of  re- 
viewers appointed  by  the  circuit  court  in  assessing  damages  to  the 
owners  of  land  over  which  this  railroad  passed.  The  question  that 
arises  in  the  present  case  was  not  raised  in  either  of  those,  as  there 
was  no  doubt  in  regard  to  the  judicial  character  of  the  action  under 
review ;  but  our  decisions  upon  the  various  subjects  of  county  court 
jurisdiction  in  relation  to  their  character  as  judicial,  or  otherwise, 
have  been  generally  consistent. 

The  proceedings  in  general  of  county  courts  in  probate  matters 
have  been  treated  as  judicial,  especially  when  they  are  adverse,  and 
parties  are  brought  in,  or  are  supposed  to  be  in  court ;  and  while 
some  things  in  the  laying  out  and  opening  of  public  roads  may  be 
considered  as  legislative  or  administrative,  still  all  action  affecting 


55^  IN   RE   SALINE  COUNTY   SUBSCRIPTION.  §     I 

the  property  rights  of  private  persons  is  clearly  judicial  and  subject 
to  review  in  the  appellate  courts.  (Overbeck  v.  Galloway,  lo  Mo. 
364;  Cooper  County  v.  Geyer,  19  Mo.  247;  Bernard  v.  Callaway 
County  Court,  28  Mo.  37 ;  County  of  St.  Louis  v.  Lind,  42  Mo.  348 ; 
Foster  v.  Dunklin,  44  Mo.  216.)  This  court,  in  the  county  of  St. 
Louis  V.  Sparks,  11  Mo.  201,  seems  to  treat  the  action  of  the  county 
court  against  a  defaulting  collector  as  judicial,  it  having  been  based 
upon  the  provisions  of  article  II  of  the  act  concerning  county  treas- 
urers in  the  revision  of  1835  (p.  151) — a  very  different  statute  from 
the  one  now  in  force  on  the  subject,  and  one  that  made  it  the  duty  of 
the  county  court  to  render  judgment  against  the  defaulter. 

In  approving  the  bond  of  a  sheriff,  county  courts  act  in  a  minis- 
terial and  not  in  a  judicial  capacity.  (State  ex  rcl.  Adamson  v. 
Lafayette  County  Court,  41  Mo.  221 ;  State  ex  rel.  Jackson,  v.  How- 
ard County  Court,  id.  247. 

County  courts  have  exclusive  jurisdiction  in  the  repairing  of  pub- 
lic buildings.  "'These  matters  belong  to  the  administrative  and 
ministerial  functions  of  the  county  court,  and  not  to  the  judicial 
branch  of  their  jurisdiction."     (Vitt  v.  Owens,  42  Mo.  512.) 

The  action  of  the  county  court  in  making  a  subscription  to  the 
stock  of  a  railroad  company  is  discretionary  and  administrative. 
There  is  no  imperative  obligation  to  make  it.  (St.  Joe  and  Denver 
City  R.  R.  Co.  v.  Buchanan  County,  39  Mo.  485.) 

We  have  held  at  this  term,  in  Marion  County  v.  Phillips,  that  a 
settlement  with  the  county  collector  was  not  a  judicial  act,  but  that 
of  the  public  agents  of  the  county  with  one  of  its  officers ;  and  the 
general  question  is  also  considered.  The  case  of  St.  Joe  and  Denver 
City  Railroad  Company  v.  Buchanan  county,  expressly  decides  the 
case  at  bar;  and  all  the  cases  are  inconsistent  with  the  idea  that  the 
exercise  of  a  discretionary  power,  given  by  law  to  the  county  court 
of  Saline  County,  if  it  be  given  to  make  a  subscription  to  the  stock  of 
a  railroad,  can  be  in  any  sense  a  judicial  proceeding.  A  court  has  no 
discretion,  but  must  render  judgment  according  to  the  facts  and  the 
law,  while  this  subscription  might  have  been  made  or  refused.  The 
judges  were  bound,  it  is  true,  to  act  with  good  judgment,  judiciously  ; 
but  exercising  a  sound  judgment  is  by  no  means  synonymous  with 
rcnrlering  judgment,  and  acting  judiciously  is  not  always  acting 
judicially. 

Counsel  press  upon  our  consideration  the  authority  of  Robinson  v. 
Board  of  Supervisors  of  Sacramento,  16  Cal.  208,  where  the  action 
of  the  board,  in  raising  the  salaries  of  certain  clerks,  was  held  by  a 
majority  of  the  court  to  be  judicial,  and  sul^ject  to  be  reviewed  on 
certiorari.  Justices  Baldwin  and  Cope  constituting  the  majority  and 
Chief  Justice  Field  rlisscnting.  Justice  B.alfKvin  gives  a  long  opin- 
ion, while  C  J.  ]*"icld  simply  says  that  he  regards  the  ordinance  as 
a  legislative  act  involving  in   its  passage  no  judicial    functions.     T 


§    I  CERTIORARI,   IN    GENERAL.  559 

have  examined  the  authorities  cited  in  support  of  the  opinion  of  the 
majority,  and  upon  which  it  was  expressly  based,  contrary,  as  they 
said,  to  the  original  opinion  of  the  judges,  and  am  more  than  ever 
impressed  with  the  jumble  and  uncertainty  in  which  this  subject 
has  been  involved  in  our  most  respectable  courts.  Among  the  au- 
thorities relied  on  was  Supervisors  of  Onondaga  v.  Briggs,  2  Denio 
26,  in  which  the  plaintiff  had  prosecuted  the  defendant  to  recover 
back  fees  illegally  charged  and  paid  him  as  county  attorney.  His 
bills  had  been  annually  taxed  by  a  supreme  court  commissioner,  upon 
notice  to  the  chairman  of  the  board  of  supervisors,  and  regularly 
audited  and  paid  by  the  board.  The  supreme  court  held  that  no  part 
of  the  sums  so  paid  him  could  be  recovered  back,  and  gave  the  fol- 
lowing conclusions  of  law  as  applicable  to  the  case:  "i.  That  the 
taxation  was  a  judicial  determination  of  the  matter  by  officers  duly 
authorized  to  adjudicate  upon  it,  and,  consequently,  that  the  taxa- 
tion can  not  be  set  aside  or  disregarded  in  this  collateral  action. 
2.  But  if  the  taxation  is  not  conclusive,  then  the  matter  has  been  ad- 
judicated by  the  board  of  supervisors,  who  had  ample  authority  to 
decide  it ;  and  their  determination  is  conclusive  upon  both  parties, 
and  especially  upon  themselves ;  and  3.  The  plaintiffs  have  volun- 
tarily paid  the  money  with  a  full  knowledge  of  all  the  facts,  and 
can  not,  therefore,  recover  it  back." 

The  Supreme  Court  of  California  must  have  relied  upon  the  seconol 
proposition  and  construed  it  as  holding  that  the  board  of  supervisors, 
in  auditing  claims  against  the  county,  acts  judicially,  and  that  their 
action  has  the  force  of  a  judgment.  If  that  was  intended,  it  cer- 
tainly is  not  the  law  of  Missouri.  Our  county  courts  are  the  audit- 
ing boards  of  the  several  counties,  and  the  statute  goes  so  far  as  to 
provide  for  an  appeal  to  the  circuit  court  if  the  account  is  rejected. 
(Gen.  Stats.  1865,  ch.  38,  §  36.)  Yet  our  courts  do  not  hesitate  to 
entertain  suits  against  counties  upon  rejected  claims,  which  would  be 
absurd  if  their  action  had  the  force  of  a  judgment.  So,  also,  this 
court  issues  a  mandamus  ag-ainst  county  courts  in  a  proper  case, 
commanding-  them  to  pay  rejected  accounts,  which  is  utterly  incon- 
sistent with  their  judicial  character.  (State  v.  Buchanan  county 
court,  41  Mo.  254.) 

The  following  extract  from  an  opinion  of  Judge 'Cowen  is  one  of 
the  cases  cited  in  support  of  Robinson  v.  Board,  etc.,  is  very  perti- 
nent to  the  general  question :  "The  power  to  interfere  by  certiorari 
is  laid  down  very  broadly  by  some  dicta  importing  that  all  infringe- 
ment of  rights  by  persons  legally  clothed  with  authority  to  act,  but 
who  exercise  that  authority  illegally,  may  be  corrected  by  certiorari. 
="  *  *  None  of  these  cases,  however,  in  which  this  language  is 
used,  and  none  which  were  referred  to  by  the  learned  judges  using 
it,  have  gone  beyond  a  review  of  judicial  decisions.  Taking  these 
dicta  in  the  abstract,  we  might  remove  every  by-law  or  other  cor- 


560      PINE   BLUFF   WATER   &    LIGHT   CO.    V.    CITY   OF    PINE   BLUFF.       §     I 

porate  act  of  every  corporation  in  the  state.  Parks  v.  Mayor,  etc., 
of  Boston,  held  that  when  the  mayor  and  alderman  had  the  right  to 
take  property  for  laying  out  or  widening  a  street,  whenever  in  their 
opinion  it  was  necessary,  the  taking  was  an  exercise  of  judicial 
power.  (8  Pick.  225.)  But  no  other  case,  I  think,  has  gone  so  far ; 
and  a  liberal  application  of  that  decision  would  seem  to  take  in  every 
act  which  a  corporation  can  do  under  any  statute  power  whatever. 
It  was  said  that  the  corporation  was  required  to  adjudicate  on  the 
necessitv  of  taking  property  ;  but  the  same  thing  may  be  said  of  every 
act  which  a  corporation  may  do  under  the  most  common  power,  even 
affixing  their  corporate  seal."  And  this  most  learned  of  judges  goes 
on  to  account  for  their  erroneous  opinion,  from  the  fact  that  our 
courts  have  been  misled  by  English  decisions  in  regard  to  the  com- 
missioners of  sewers,  who  constitute  a  court  of  record,  and  whose 
acts  are  judicial.  (In  the  matter  of  Mt.  Morris  Square,  2  Hill.  22.) 
Since  the  hearing  in  Robinson  v.  Board,  etc.,  of  Sacramento,  the  su- 
preme court  of  New  York,  in  the  People  v.  Supervisors  of  Living- 
ston County  (43  Barb.  232),  follows  up  the  matter  of  Mt.  Morris 
square,  in  restricting  the  operation  of  the  writ,  and  condemning  the 
looseness  of  the  earlier  decisions.  (See  also  The  People  v.  Board  of 
Health,  etc.,  33  Barb.  346.) 

If  Ave  were  to  entertain  jurisdiction  to  review  by  certiorari  the  ac- 
tioiirof^the  county  court  of  Saline  upon  a  discretionary  matter;"ancl 
one  involving  no  judicial  functions,  I  know  not  what  proceeding  of 
county  and  city  authorities  might  not  be  brought  before  us.  Coun- 
sel are  aware  of  the  labor  involved  to  keep  down  our  growing  docket, 
and  can  readily  imagine  its  condition  if  we  were  to  assume  the  power 
of  revising  the  legislative  and  ministerial  acts  of  all  public  agents  in 
the  state.  Still,  had  we  the  jurisdiction,  the  matter  of  convenience 
to  the  people  and  bondholders  of  Saline,  suggested  by  counsel,  would 
be  a  proper  matter  of  consideration,  as  this  is  a  discretionary  writ, 
and  not  a  writ  of  right ;  but  as  it  is,  ultimate  confusion,  rather  than 
convenience,  would  follow  such  a  breaking  down  of  the  landmarks 
of  the  law. 

The  motion  for  the  writ  was  granted  without_Jiearing,  but  the 
y^roccedings  sought  to  be  reviewed  not  bcnigfjudicial,  the  writ  is 
quashed.    The  other  judges  concur. 


PINE  BLUl-T-   \\A  ri'.K  .K:  I.KiUT  CO.  v.  CITY  OF 
IMXl'.  P.LUFE. 

iRf/).     Supreme  Coukt  01   Akk.nn.sas.    C^j  Ark.  196;  35  S.  W.  227. 

Cektiorari  by  the  Pine  iUuff  Water  &  Pight  Coni])any  to  review 
an' ordinance  oT'tlie'CTty  of  Pine  P.hifT  requiring- plaintiff  to  deposit 
with  'Aw  city  a  certain  sum  before  making  excavations  in  the  streets,' 


§     I  CERTIORARI,   IN   GENERAL.  561 

and  that  the  filling  and  paving  of  excavations  should  be  done  vmder 
the  supervision  of  an  engineer  to  be  paid  by  the  person  making  the 
excavations.  From  a  judgment  denying  the  writ,  plaintiff  appeals. 
Affirmed. 

Battle,  J.  Does  the  writ  of  certiorari  lie  to  review  the  ordinance 
of  the  city  of  Pine  Bluff  which  is  in  question  in  this  proceeding? 

At  common  law  the  writ  lies  only  to  review  the  judicial  action  of 
inferior  courts,  or  of  public  officers  or  bodies.  When  the  action  of 
the_publicofficers  or  bodies  is  purely  legislative,  achninisffafive  and 
executive,  although  it  involves  the  exercise  of  discretion,  it  is  not  re- 
viewable on  certiorari.  People  v.  Walter,  68  N.  Y.  403 ;  People  v. 
Mayor,  etc.,  of  New  York,  2  Hill,  9 ;  In  re  Mt.  Morris  Square,  id. 
14;  State  V.  Kemen,  61  Wis.  494;  21  N.  W.  530;  People  v.  Board 
of  Supervisors  of  Livingston  Co.  43  Barb.  232 ;  People  v.  Board 
of  Commissioners  of  New  York,  97  N.  Y.  37;  People  v.  Board  of 
Supervisors  of  Queens  Co.  (N.  Y.  App.)  30  N.  E,  488;  Whittaker 
V.  Village  of  Venice  (111.  Sup.)  37  N.  E.  240;  Commissioners  v. 
Giffin  (111.  Sup.),  25  N.  E.  995  ;  Esmeralda  Co.  v.  Dist.  Ct.,  18  Nev. 
438,  5  Pac.  64;  People  v.  Martin,  142  N.  Y.  228,  37  N.  E.  117; 
State  V.  Board  of  Aldermen  of  City  of  Newport  (R.  I.),  28  Atl.  347 ; 
2  Dill.  Mun.  Cor,  (4th  ed.)  §927;  2  Spell.  Extraordinary  Relief, 
§  1954.  But  it  is  not  essential  that  the  officers  or  bodies  to  whom  it 
lies  shall  constitute  a  court,  or  that  their  proceedings  to  be  reviewable 
*5v  the  writ,  should  be  strictly  and  technically  "judicial,"  in  the 
Sense  that  word  is  used  when  applied  to  courts.  It  is  sufficient  if  they 
are  what  is  termed  "quasi-judicisLl."  It  has  been  held  that  it  lies  to 
review  the  proceedings  of  officers  and  bodies,  because  they  are 
quasi-judicial  in  the  following  cases:  Of  supervisors,  commissioners 
and  city  coimcils  in  opening,  widening,  altering  or  discontinuing  pub- 
lic streets  and  highways  (Parks  v.  Mayor,  etc.,  of  Boston,  8  Pick. 
226;  Tucker  v.  Rankin,  15  Barb.  471)  ;  assessments  for  sewers  or 
other  improvements  (Attorney  general  v.  Mayor,  etc.,  of  Northamp- 
ton, 143  Mass.  589,  10  N.  E.  450)  ;  of  school  trustees  (Miller  v.- 
Trustees,  88  III.  26;  State  v.  Whitford,  54  Wis.  150,  11  N.  W.  424)  ; 
of  a  town  board  in  removing  an  assessor  (Merrick  v.  Board,  41 
Mich.  630,  2  N  W.  922)  ;  of  a  city  council  removing  a  city  officer 
(Mayor,  etc.,  of  Macon  v.  Shaw,  16  Ga.  172;  People  v.  Nichols,  79 
N.  Y,  582 ;  People  v.  Hayden  (City  Ct.  of  Brooklyn,  27  N.  Y.  Supp. 
881)  ;  of  a  city  council  in  granting  a  ferry  license  (Ex  parte  Fay,  15 
Pick.  243)  ;  of  a  board  of  supervisors  in  ordering  an  election  to  re- 
locate a  county  seat  (Herrick  v.  Carpenter  (Iowa),  6  N.  W.  574)  ; 
of  a  board  of  supervisors  in  creating  the  office  of  a  clerk  of  said 
board,  and  raising  certain  salaries  which  had  been  fixed  by  statute 
(Robinson  v.  Supervisors,  16  Cal.  208)  ;  of  proceedings  of  directors 
of  a  township  directing  their  secretary  not  to  certify  a  tax  that  had 
been  voted   (Smith  v.  Powell,  55  la.  215,  7  N.  W.  602)  ;  of  pro- 


562      Pl.NE   iiLUlF    WATER   &   LIGHT   CO.    V.    CITY   OF    PINE   liLUFF.       §     I 

ceedings  of  commissioners  in  refusing  or  granting  a  liquor  license 
(People  V.  Commissioners  of  Excise  of  Claverack  (Co.  Ct.)  25 
N.  Y.  Supp.  322;  Dexter  v.  Town  Council  (R.  I.)  21  Atl.  347;  and 
of  proceedings  of  a  board  of  equalization  (Orr  v.  Board  (Idaho),  28 
Pac.  416).  There  are  other  proceedings  of  officers  and  public  bodies 
which  it  lies  to  review,  because  they  are  quasi-iudicial,  but  those 
mentioned  are  sufificient  to  illustrate  the  rule. 

But  it  is  insisted  that  the  ordinance  before  us  is  reviewable  on 
certiorari  under  section  1125  of  the  digest.  That  section  provides 
that  circuit  courts  "shall  have  power  to  issue  writs  of  certiorari  to 
any  officer  or  board  of  officers,  or  any  inferior  tribunal  of  their  re- 
spective counties,  to  correct  any  erroneous  or  void  proceeding,  and 
to  hear  and  determine  the  same."  Literally  construed  this  section 
gives  to  circuit  courts  the  power  to  correct  on  certiorari,  every  er- 
roneous act  of  any  and  all  officers,  board  of  officers  and  inferior  tri- 
bunals, and  to  even  correct  all  their  void  acts.  How  this  can  be 
done  is  difficult  to  understand  and  comprehend.  It  is  evident  it  v/as 
not  intended  to  be  understood  in  that  sense.  How,  then,  can  its 
meaning  be  determined  except  by  aid  of  the  common  law  ?  In  R.  R. 
Co.  V.  Barnes,  35  Ark.  99,  this  court  held  that  it  did  not  so  enlarge 
the  office  of  the  writ,  "as  to  make  it  answer  the  ends  of  an  appeal  or 
writ  of  error,  for  the  correction  of  mere  errors  in  judicial  proceed- 
ings." In  that  case  the  court  confined  the  writ  to  its  office  as 
defined  by  the  common  law.  By  what  process  of  reasoning  it  can 
be  limited  in  that  respect,  and  not  in  others,  I  am  unable  to  under- 
stand. 

The  "Code  of  Practice  in  Civil  Cases"  and  its  amendments,  of 
which  this  statute  is  a  part,  was  not  intended  as  an  amendment  of  the 
system  of  pleading  and  practice  prevailing  at  the  time  of  its  adoption, 
but  as  a  substitute  for  "any  case  provided  for  by"  it  "or  inconsistent 
with  its  provisions."  Section  857.  This  being  the  object  of  it  and 
its  amendments,  it  is  evident  that  so  much  of  section  1125  of 
the  digest  as  we  have  quoted  was  not  intended  to  amend  the  common 
law  by  enlarging  the  office  of  the  writ ;  but,  presumably  knowing  its 
office  at  common  law,  the  legislature  adopted  it,  and  made  it  a  part 
of  the  code,  as  it  was  of  the  common  law  pleading  and  practice,  and 
thereby  intended  to  authorize  the  circuit  courts  by  means  of  it,  to 
review  juflicial  and  quasi  judicial  proceedings  of  officers,  boards 
of    officers,  and  inferior  tribunals,  and  no  other. 

The  ordinance  under  consideration  is  purely  legislative,  and  is  not 
reviewable  on  ccriinrari. 

The  |u(lgment  of  the  circuit,  denying  tlic  writ,  is  affirmed. 


§    I  CERTIORARI,   IN   GENERAL.  563 

QUIXCHARD  V.  BOARD  OF  TRUSTEES  OF 
ALAMEDA  et  al. 

1896.    SuPREAiE  Court  of  California.     113  Cal.  664;  45  Pac.  856. 

Certiorari  by  Qninchard  against  the  board  of  trustees  of  Alameda 
and  others.  Judgment  for  plaintiffs  and  respondents  appealed.  Re- 
versed. " 

■"Harrison,  J. — The  plaintiff  obtained  a  writ  of  review  from  the 
superior  court  for  the  purpose  of  annulling  an  order  passed  by 
tHe  board  of  trustees  of  Alameda  for  the  improvement  of  a  certain' 
street  in  that  city,  and  all  subsequent  proceedings  in  reference' 
thereto.  Upon  the  return  to  the  writ,  and  after  a  hearing  thereon, 
the  court  rendered  its  judgment  annulling  its  order  for  the  improve- 
ment, .."and  that  all  acts  or  proceedings  taken  or  had,  done  or  per- 
formed, by  the  said  board  of  trustees  and  by  the  said  superintendent 
of  streets,  respondents,  subsequent  to  the  said  23d  day  of  March, 
1 89 1,  appearing  in  and  by  the  returns  herein,  be,  and  the  same  are 
hereby  annulled,  and  held  for  naught."  From  this  judgment  the 
respondents  to  the  writ  have  appealed. 

The  plaintiff  does  not  contend  that  the  resolution  of  intention 
to  order  the  improvement  is  insufficient,  or  that  it  was  not  properly 
passed  by  the  board  of  trustees,  or  that  the  notices  and  other  pro- 
ceedings required  by  the  street  improvement  act  in  order  to  give  to 
the  board  of  trustees  jurisdiction  to  order  the  improvement  were 
not  properly  given ;  but  it  is  claimed  that  the  proceedings  subse- 
quent thereto  were  of  such  a  character  as  to  vitiate  the  order,  as 
well  as  the  contract  for  doing  the  work,  and  the  assessment  issued 
therefor.  Counsel  have  discussed  very  fully  the  suflticiency  of  these 
subsequent  proceedings,  but  from  the  conclusion  we  have  reached 
upon  the  proposition  of  the  appellants  that  the  writ  was  improperly 
issued,  it  is  unnecessary  to  pass  upon  the  sufficiency  of  these  pro- 
ceedings. At  common  law  the  writ  of  certiorari  was  employed  for 
the  purpose  of  reviewing  the  proceedings  of  inferior  tribunals  in 
their  exercise  of  judicial  powers,  and  was  issued  in  cases  where 
the  final  determinations  of  these  tribunals  were  not  subject  to  re- 
view in  any  other  mode.  The  writ  was  considered  an  extraordinarv 
legal  remedy,  and  was  issued  in  the  discretion  of  the  court,  and 
only  when  there  was  no  other  mode  of  review.  This  discretion, 
however,  was  not  arbitrary,  but  was  only  a  legal  discretion  con- 
trolled by  principles  of  law,  and,  if  improperly  exercised,  was  sub- 
ject to  be  corrected  on  appeal.  Board  of  Supervisors  v.  Magoon, 
109  111.  142.  As  a  street  assessment  in  this  state  can  be  collected 
only  by  means  of  foreclosure  in  a  court  of  record,  and  as  the  facts 
relied  upon  by  the  plaintiff  herein  be  available  in  defense  of  such 
an  action,  and,  if  deemed,  sufficient  to  establish  a  want  of  jurisdic- 


564         QUIXCHARD   V.    BOARD  OF   TRUSTEES  OF   ALAMEDA   ET   AL,  §     I 

tion  either  to  order  the  improvement  or  to  award  the  contract,  would 
defeat  the  action,  the  discretion  of  ihe  court  would  have  been  prop- 
erly exercised  in  denying  the  writ.  (  Spooner  v.  City  o^  Seattle,  6 
Wash.  370,  33  Pac.  963;  People  v.  Myers,  135  X.  Y.  465,  32  N. 
E.  241.)  The  writ  should  never  be  employed  as  a  substitute  for  an 
action  to  remove  a  cloud  from  a  title.  The  scope  of  the  writ  has 
been  limited  in  this  state  by  the  provisions  of  1068,  Code  Civ.  Proc, 
and  it  is  to  be  issued  only  "w^hen  an  inferior  tribunal,  board  or 
officer  exercising-  judicial  functions,  has  exceeded  the  jurisdiction 
of  such  tribunal,  board  or  officer,  and  there  is  no  appeal,  nor  in 
the  judgment  of  the  court  any  plain,  speedy  and  adequate  remedy ;" 
and  by  section  1074:  "The  review  upon  this  writ  cannot  be  ex- 
tended further  than  to  determine  whether  the  inferior  tribunal, 
board  or  officer  has  regularly  pursued  the  authority  of  such  tribunal, 
board  or  officer."  In  Central  Pac.  R.  R.  Co.  v.  Board  of  Equaliza- 
tion of  Placer  Co.,  43  Cal.  365,  it  w^as  held  that  the  clause  in  sec- 
tion 1074,  "whether  the  inferior  tribunal  has  regularly  pursued  the 
authoritv  of  such  tribunal."  is  to  be  construed  as  the  equivalent 
of  the  clause,  "has  exceeded  the  jurisdiction  of  such  tribunal,"  in 
section  T068.  The_chqracter  of  the  net  or  deter tnination  sought 
to  be  reviewed,  rather  than  of  the  tribunal  or  officer  by  zvhich  the 
act  or  dcterinivMtion  is  made,  is  the  test  for  determining  zvhether 
ihe  writ  should  be  issued,  for  it  is  only  a  determination  which  is 
made  "when  exercising  judicial  function,"  that  can  be  reviewed. 
"The  officer  or  trilnmal  to  whom  the  writ  of  certiorari  is  issued 
must  be  an  inferior  officer  or  tribunal  exercising  judicial  functions, 
and  the  proceeding  to  be  brought  up  for  review  must  be  a  judicial 
proceeding."    People  v.  i'ush,  40  Cal.  34^. 

The  functions  exercised  by  a  municipal  cor])oration  may  be  leg- 
islative, administr-^tive  or  judicial,  but  only  the  acts  done  by  it 
"when  exercising  judicial  functions"  can  be  reviewed  under  this 
procedure.  "This  writ  does  not  lie  under  our  laws  to  review  the 
action  of  any  tribunal,  board  or  officer  in  the  exercise  of  functions 
which  are  legislative  in  their  character." .  People  v.  Oakland  Board 
of  P'ducation,  54  Cal.  375.  Whether  an  existing  street  shall  be 
improved  is  a  question  to  be  addressed  to  the  governing  body  of  a 
municipality  in  its  legislative  capacity,  and  its  (letenuinatioii_ir[)(in 
tliat  question,  as  well  as  upon  the  character  of  the  improvement 
to  be  made,  is  a  legislative  act.  Dill.  Mun.  Cor.  §  94,  927: 
Cri'ighton  v.  Mason,  2"/  Cii].  613;  De  Witt  v.  Duncan,  46  Cal.  343; 
Holton  v.  Cillcran,  T05  Cal.  244,  38  Pac.  881.  The  act  does  not 
cease  to  be  legislative  because  the  members  of  the  city  council  are 
rcf|uircd  to  exercise  their  judgment  in  (Ktermining  whether  the 
improvement  .shall  be  made.  The  judgment  which  they  exercise 
in  ordering  the  improvement  is  not  a  determination  of  the  rights  of 
an  inflividual  under  existing  laws,  but  is  the  conclusion  or  opinion 


§     I  CERTIORARI,   IN    GENERAL.  565 

which  they  form  in  the  exercise  of  the  discretionary  power  that  has 
"Ueen  intrusted  to  them,  and  upon  a  consideration  of  the  pubHc  wel- 
fare and  demands  for  w^hich  they  are  to  provide.  The  discretion 
and  opinion  is  a  part  of  the  legislative  power  that  has  been  con- 
ferred upon  tlie  city,  and  is  of  the  same  character  as  that  exercised 
by  the  legislature  itself  in  providing  for  the  general  welfare  of  the 
state,  and  is  equally  independent  of  supervision  by  the  judiciary. 
The  adoption  by  the  city  council  of  an  order  for  the  improvement 
of  a  street  is  not  in  the  nature  of  a  judgment  which  is  binding 
upon  the  city,  but  is  merely  the  declaration  of  a  purpose,  and 
is  only  a  step  taken  by  it  in  the  contemplation  of  the  improve- 
ment, from  which  it  may  recede  at  any  time  before  the  con- 
tract for  the  improvement  has  been  awarded.  The  fact  that  a 
public  a^ent  exercises  judgment  and  discretion  in  the  perTormance 
of  his  duties  does  not  make  his  actions  or  powers  judicial  in  their 
character.  People  v.  Walter,  68  N.  Y.  403;  People  v.  Board  of 
Commissioners,  etc.,  of  New  York  City,  97  N.  Y.  37 ;  In  re  Wilson, 
32  Minn.  145,  19  N.  W.  723.  T^ie  distinction  between  a  judicial 
and.  .a  legislative  act-Avas  pointed  out  by  Field,  J.,  in  the  Sinking 
Fund  cases,  99  U.  S.  761,  as  fohoj^s:  _''The_one  de;termines  what 
the  law  is  and  what  the  rights  of  parties  are  with  reference  to 
transactions  already  had ;  the  other  prescribes  what  the  law  shall 
be  in  future  cases  arising  under  it."  In  People  v.  Oakland  Board 
of  Education,  supra,  this  rule  was  adopted  by  this  court  as  correct, 
and  it  was  said  w-ith  reference  to  the  matter  then  before  the  court 
"The  board  acted  upon  the  proposition  be.fQre..i.t,  as  one.  of  policy  o,r 
e X p'e cTie n c y ^ ""atmtn g  t o  adopt  that  which  in  its  judgment  would  be 
best  for  the  constituency  which  it  represented.  Its  action  was  then 
political  or  legislative,  and  was  in  no  proper  sense^ji^ididaL-iii  its 
character.  It  is  conceded  that  the  board  exercised  its  judgment 
in  the  action  which  it  took,  but  this  it  was  called  to  do  in  the  exer- 
cise of  its  legislative  functions.  It  is  apparent  that  the  exercise  of 
judgment  is  not  the  criterion  by  which  this  proceeding  must  be 
viewed  to  determine  its  character.  To  render  it  the  exercise  of 
a  judicial  function,  its  judgment  must  act  in  a  matter  which  is 
judicial  in  the  sense  above  indicated."  In  the  opinion  given  by. 
Mr.  Justice  McKinstry  in  Spring  Valley  Water  Works  v.  Bryant, 
52  Cal.  132,'  this  subject  received  an  extended  examination,  and 
it  was  said :  "From  the  foregoing  and  other  cases  heretofore  de- 
cided it  sufficiently  appears  that  it  has  alw  jys  been  considered  by 
this  court  that  the  office  of  certiorari  is  to  bring  here  for  review 
the  proceedings  of  governmental  boards  exercising  a  mixed  author- 
ity, only  w^hen  the  matter  is  one  in  which  they  have  acted  judi- 
cially." See,  also,  People  v.  Supervisors  of  St.  Lawrence  Countv, 
25  Hun  131  ;  In  re  Mt.  Morris  Square.  2  Hill  14:  People  v.  Board 
of  Health  of  New  Yorl:  City,  33  Barb.  344  ;  People  v.  Board  of 


566       QUINCHARD    V.    BOARD    OF    TRUSTEES    OF    ALAMEDA    ET    AL.       §     I 

Supervisors  of  Livingston  Co.,  43  Barb.  22^2;  Townsencl  v.  Cope- 
land,  56  Cal  612.  Under  the  provisions  of  the  street  assessment 
act,  the  proceedings  of  the  ciiy  council  for  the  improvement  of  a 
street — the  resohition  of  intention,  the  order  directing  the  improve" 
ment,  the  invitation  for  proposals,  the,  award  of  the  contract — are 
all  legislative  in  character.  With  the  award  of  the  contract,  unless 
tliere  shall  afterwards  be  an  appeal  from  some  act  of  the  superin- 
tendent of  streets,  the  functions  of  the  council  cease,  and  those  of 
the  superintendent  begin.  His  acts — the  entering  into  the  contract, 
the  acceptance  of  the  bond,  the  fixing  the  time  for  performing  the 
contract,  the  acceptance  of  the  work  and  the  making  of  the  assess- 
ment— are  ministerial  in  their  character,  and  do  not  call  for  the 
exercise  of  judicial  functions. 

Although  the  question  has  not  been  discussed  by  counsel,  we  do 
not  wish  to  be  understood  as  sanctioning,  even  by  silence,  the  prac- 
tice herein  adopted,  by  the  plaintifiF  in  joining  in  the  writ  the  super- 
intendent of  streets  and  the  contractor  with  the  board  of  trustees. 
The  statute  provides  that  the  writ  is  to  be  directed  to  the  inferior 
tribunal,  board  or  officer  or  to  any  other  person  having  the  custody 
of  the  record  or  proceedings,  to  be  certified  (Code  Civil  Proc. 
§  1070),  and,  as  the  review  is  limited  to  examining  the  jurisdiction 
of  the  board  or  officer  to  whom  the  writ  is  issued,  there  is  a  manifest 
impropriety  in  joining  in  the  same  proceeding  tribunals  or  officers 
who  exercise  a  jurisdiction  separate  and  distinct  from  each  other. 
Jurisdiction  is,  io  its  nature  an  entirety,  and  exclusive  in  the  body 
or  person  upon  whom  it  has  been  conferred ;  and  a  writ  of  certiorari 
directed  to  different  officers  having  no  joint  or  common  duties  but 
acting  each  independently  of  the  other,  is  unauthorized.  People  v. 
Walter,  68  N.  Y.  403 ;  Starr  v.  Rochester,  6  Wend.  564.  In  the 
matter  sought  to  be  reviewed  the  functions  of  the  superintendent 
of  streets  and  of  the  board  of  trustees  are  entirely  distinct,  and 
that  officer  should  not  have  been  included  in  the  writ.  It  is  difficult 
to  see  upon  what  grounds  the  contractor  was  joined  with  the  others, 
as  no  jurisdiction  i.s"  exercised  by  him,  and  he  did  not  even  make 
any  return  to  the  writ.  The  superintendent  of  streets  can  exercise 
no  jurisdiction  until  after  the  board  of  trustees  have  by  their  acts 
conferred  such  jurisdiction  upon  him,  and  the  jurisdiction  which  he 
exercises  is  distinct  from  that  exercised  by  the  trustees.  An  appeal 
may  be  taken  to  them  from  the  assessment  made  by  him,  and  from 
other  act?  or  determinations  of  his.  Upon  such  appeal  the  city 
council  for  the  first  time  exercises  judicial  functions  (see  Barber 
v.  Snn  Francisco.  42  Cal.  630")  ;  but  the  making  of  the  assessment 
by  the  superintendent  is  but  a  clerical  or  ministerial  act.  Under 
the  system  adopted  in  this  state  the  assessment  consists  merely  in 
an  apportifinmrnt  of  the  expenses  of  the  work  upon  the  land  front- 
ine^  thcrc<'jn.    The  rule  for  this  apportionment  has  been  fixed  by  the 


§    I  CERTIORARI^   IN   GENERAL.  567 

legislature,  and  the  superintendent  of  streets,  in  making  this  assess- 
ment, is  not  in  the  exercise  of  any  judgment  or  discretion,  but 
merely  performs  the  clerical  functions  of  making  an  arithmetical 
computation  of  the  amount  to  be  charged  against  each  lot.  Bolton 
V.  Gilleran,  supra.  The  cases  cited  from  other  states,  where  the 
assessment  on  each  lot  is  to  be  made  according  to  the  benefits  which 
that  lot  has  received  from  the  improvement,  and  in  which  it  has 
been  held  that  the  parties  to  be  affected  by  his  acts  are  entitled  to 
notice,  and  an  opportunity  to  be  heard  before  a  legal  charge  can  be 
made  against  their  property,  are,  therefore,  inapplicable.  The 
statute,  moreover,  provides  for  an  appeal  to  the  city  council  from 
the  act  of  the  superintendent  in  making  the  assessment,  and  thus 
by  express  terms  takes  away  the  right  to  invoke  the  aid  of  a  court 
to  set  aside  the  assessment  by  means  of  a  writ  of  review.  Wright 
V.  Commissioners,  150  111.  138;  36  N.  E.  980;  People  v.  Thayer, 
88  Hun.  136,  34  N.  Y.  Supp.  592.  In  the  present  case,  such  appeal 
was  taken,  and  the  assessment  affirnie^  TTlTe^udgment  is  reversed 
and'tbe  superior^court  is  directed  to  dismiss  the  writ. 


PEOPLE  EX  REL.  HUNTING  v.  COMMISSIONERS  OF 
HIGHWAYS  OF  EAST  HAMPTON. 

1864.    Court  of  Appeals  of  New  York.    30  N.  Y.  (3  Tiffany)  72. 

(Appeal  from  a  judgment  of  the  superior  court  afffrming  the 
proceedings  of  defendants  for  the  removal  of  obstructions  of  a 
highway  in  said  town.  The  certiorari  was  directed  to  one  Conklin 
and  five  others,  naming  them  as  jurors,  who  had  as  between  de- 
fendants and  relator  determined  and  found  that  said  relator's  fences 
enCfoacTied  on 'said  highway.  To  the  writ,  Conklin,  as  foreman 
of  said  jury,  made  a  return  setting  forth  the  proceedings  and  the 
finding  of  said  jury.) 

Johnson,  J. — The  proceedings  to  reniove  encroachments  upon 
a  highway  in  the  counties  of  Suffolk,  Queens  and  Kings,  under 
the  act  of  23d  of  February,  1830,  applying  to  these  counties  exclu- 
sively, are  identical  with  the  proceedings  for  the  same  purpose 
in  other  parts  of  the  state,  under  the  revised  statutes,  except  that 
in  the  first  named  act  only  six  jurors  out  of  twelve  summoned  are 
drawn  to  serve  as  the  jury  and  try  the  question. 

The  object  which  the  relator  sought  to  accomplish  by  the  writ  of 
certiorari,  and  proceedings  under  it,  was  to  procure  a  reversal  of 
the  order  of  the  commissioners  of  highways,  ordering  the  removal 
of  the  relator's  fences,  as  an  encroachment,  and  the  subsequent  pro- 
ceeding's under,  that  order.     In  order  to  do  this,  it  was  necessary 


568  PEOPLE  V.  COMMISSIONERS  OF  HIGHWAYS.  §    I 

that  that  order  should  have  been  brought  up  and  made  part  of  the. 
r^ord.  That  order  lay  at  the  foundation  of  all  of  the  proceedings, 
a'fld  unless  brought  up  by  the  return,  the  entire  end  and  aim  of  the 
certiorari  must  fail  necessarily.  Of^course  this  order  could  not  be 
brought  up  on  a  certiorari  directed  tojtli^.^ury.  iney  had  no  cus- 
tody  at'  it.  It  did  not  belong  to  them  or  remain  with  them,  and 
they  could  make  no  return  of  it.  It  is  quite  apparent  that  the  jury 
is  not  the  body  to  which  a  certiorafTshonXd'he  directed  in  such  a 
case.  They  merely  come  to  try  a  disputed  question  of  fact  between 
the  commissioners  and  the  occupant  of  the  land,  upon  evidence 
produced  before  them  by  either  party  litigant,  and  certify  their  find- 
ing. The  certificate  is  to  be  filed  in  the  town  clerk's  office,  and  that 
is  an  end  of  their  power  and  authority  in  the  matter.  No  part  of 
the  record  belongs  to  them,  or  remains  with  them,  and  they  can 
return  nothing  other  than  what  has  been  returned  here,  a  mere 
narrative  of  the  proceedings  before  them.  This  is  no  record,  in 
any  legal  sense,  of  the  proceedings  by  which  the  relator's  fence  was 
determined  to  be  an  encroachment.  A  certiorari  does  not  lie  to 
an  inferior  tribunal  except  to  remove  proceedings  which  remain  be- 
fore it.  (The  People  v.  Supervisors  of  Queens,  i  Hill  195).  The 
writ  in  question  did  not  properly  bring  up  this  certificate  of  the 
finding  of  the  jury,  even.  They  were  no  longer^ a  legal  body^  after 
their  ^verdict,  or  finding  was  signed,  and  they  had  separa^ted—bnt 
mere  individuals.  All  their  official  functions  had  ceased  entirely. 
And  a  return  signed  by  one  of  their  number,  several  months  after- 
wards, was  no  return  of  the  jury  as  a  body  or  tribunal.  In  such  a 
proceeding  there  is  no  such  officer  as  a  foreman,  authorized  to 
represent  the  panel  of  jurors,  and  act  for  them.  Where  the  writ 
of  certiorari  is  improperly  directed,  or  returned,  nothing,  can  be 
removed  b}'  it,  (Tjac.  Abr.  Certiorari,  I.  Peck  v.  Foot,  4  How. 
Prac.  Kep.  425.)  The  writ  having  been  erroneously  directed,  and 
the  return  a  nullity,  as  most  obviously  it  is,  the  supreme  court  ac- 
(juircd  no  jurisdiction  over  the  subject  matter.  There  was  nothing 
before  it  to  reverse  or  affirm.  The  defendants  sliih  to  liavc  appeared 
and  defended  their  proceedings  as  commissioners,  though  the  writ 
was  not  directed  to  them,  nor  were  they  required  .by  .it  to  appear 
or  answer.  It  is  difficult  to  see  how  they  cmild  become  parties. 
Hut  no  f|uestion  of  this  kind  seems  to  havi'  limi  raised,  on  cither 
side,  and  the  ])roccedings  were  affirmed  in  favor  of  the  defendants. 
The  relator  has  mistaken  evidently  wholly  the  office  of  this  writ, 
which  is  merely  to  bring  up  the  record  of  the  proceedings,  to 
enable  the  .supreme  court  to  detcrnu'ne  whether  the  inferior  tri- 
bunal has  j)rocccded  within  its  jurisdiction,  and  not  correct  mere 
errors  in  the  course  of  the  proceeding.  [JSJ-'C  the  object  seems  to 
Have  l)ccn  to  bring  into  review  the  alleged  erroneous  rulings  of 
the   inr\-  in  receiving  or  rejecting  eviflcncc  offered  on  the  hearing 


§     1  CERTIORARI,   IN    GENERAL.  569 

before  them,  as  though  it  were  a  bill  .of  exceptions.  Such  ques- 
tions do  not  arise  and  cannot  l)e  reviewed  on  certiorari.  (Birdsall 
V.  "Phillips,  17  Wend.  464.)  It  is  eyidenL-gnQUgh  tliat  both  the 
defendants  and  Lhe  jury  had  jurisdiction  in  the  matter  before  theiii. 
Biit  the  proceedings  not  being  before  the  supreme  court,  there  was 
notHTng  for  them  to  affirm.  Their  judgment  should  have  been  a 
dismissal  of  the  writ,  or  that  the  relator  take  nothing  by  it. 

The  judgment  of  the  supreme  court,  must  therefore,  be  reversed 
and  the  cause  remitted  to  that  court,  with  directions  to  dismiss  the 
proceedings,  but  without  costs  to  either  party. 

All  the  judges  concurring,  judgment  accordingly. 


SWIFT,  RECORDER  OF  THE  CITY  OF  DETROIT  v. 
WAYNE  CIRCUIT  JUDGES. 

1887.  Supreme  Court  of  Michigan.  64  Mich.  479;  31  N.  W.  434. 

Campbell,  C.  J. —  A  writ  of  certiorari  was  issued  by  the  circuit 
court  ior  lhe_  county  of  Wayne  to  review  the  conviction  in  the 
feSor'Ser's  court  of  Detroit  for  an  alleged  violation  of  a  city  ordl- 
irance.  The  recorder  applies  to  us  for  a  mandamus  or  prohibition 
To^revent  the  circuit  court  from  exercising  this  jurisdiction.  The 
whole  question  turns  on  the  inquiry  whether  the  recorder's  court 
6f  Detroit,  acting  in  the  particular  case  in  controversy,  is  a  court 
inferior  to  the  circuit  court. 

The  constitution  of  Michigan  in  terms  gives  to  the  supreme  court 
a  general  superintending  control  over  all  inferior  courts,  with  powder 
to  issue  writs  of  error,  and  other  writs  named,  both  original  and 
appellate.  Art.  6,  §  3.  By  section  8  of  the  same  article  the  cir- 
cuit courts  are  given  general  civil  and  criminal  jurisdiction,  except 
as  otherwise  provided,  and  appellate  jurisdiction  and  supervisorv 
control  over  all  "inferior  courts  and  tribunals,"  within  their  juris- 
dictions. By  section  i  "the  judicial  power  is  vested  in  one  supreme 
court,  in  circuit  courts,  in  probate  couits,  and  in  justices  of  the 
peace.  Municipal  courts  of  civil  and  criminal  jurisdiction  mav  be 
established  by  the  legislature  in  cities."  Bv  section  15,  the  supreme, 
circuit  and  probate  courts  are  declared  to  be  courts  of  record,  and 
required  to  have  a  common  seal. 

A  prelirninary  question  is  what  is  meant  in  this  constitution  by 
tlie  term  "mgrior  courts?"  The  relator's  argument  is  largelv  based 
TTpon  vvTiat  counsel  would  suppose  to  be  the  common  law"  definition 
of  an  inferior  court,  which  means  a  court  which  is  not  one  of  the 
four  great  courts  of  the  realm  ;  that  is,  the  court  of  chancerv  and 
the  three  great  common  law  courts  sitting  at  Westminster.     Toml. 


0/' 


SWIFT  V.   WAYNE  CIRCUIT  JUDGES.  §    I 


Law  Diet.  "Inferior  Courts."  Another  less  accurate  distinction  is 
found  in  the  distinction  between  courts  of  record,  whose  records 
estabHsh  themselves,  and  are  valid  judgments  in  themselves,  and 
courts  not  of  record,  proceeding-  under  special  conditions,  whose 
jurisdiction  is  not  presumed.  The  recorder's  court  is  a  court  of 
record  by  name,  and,  so  far  as  it  has  common  law  powers,  its  records 
are  treated  as  common  law  records.  But  it  also  has  special  and 
peculiar  powers,  where  its  records  are  open  to  the  more  or  less 
limited  objections  allowed  by  all  jurisprudence  in  such  peculiar 
cases.  And  it  is  very  well  known  that  in  England  there  have  always 
been  many  courts,  not  sitting  at  Westminster,  whose  records  are 
respected.  The  term  "inferior"  is  not  of  one  single  meaning  in  law, 
but  is  used  in  different  senses.  Under  the  constitution  of  the 
United  States,  congress  has  no  power  to  create  courts  which  are 
not  inferior  to  the  supreme  court.  The  cases  cited  by  counsel  from 
decisions  of  that  court  do  not  claim  that  the  circuit  and  district 
courts  are  not  inferior  to  the  supreme  court,  but  that,  being  courts  of 
general  powers  and  of  record,  they  are  not  inferior  courts  in  the 
sense  in  which  that  word  is  sometimes  used  to  distinguish  courts 
among  themselves  after  their  kind.  In  England,  error  lay  to  the 
common  plea  out  of  the  king's  bench,  making  the  former  in  our 
constitutional  sense,  inferior  to  the  latter;  while  both  ranked  as 
superior  courts.  So  all  of  them  were  subject  to  review  by  the 
exchequer  chamber,  and  that  by  the  house  of  lords.  Our  Amer- 
ican constitutional  use  of  the  word  refers  to  relative  rank  and  au- 
thority, and  not  to  intrinsic  quality.  Under  our  own  constitu- 
tion, as  under  that  of  the  United  States,  the  supreme  court  could 
have  no  appellate  power  or  supervision  over  the  circuit  courts 
except  on  this  idea  that  they  are  inferior  to  it,  for  none  but 
inferior  courts  are  subjected  to  it,  and  the  jurisdiction  of  our  cir- 
cuit courts  equals  that  of  the  English  superior  courts.  And,  if  the 
argument  for  the  secondary  English  rule  is  resting  on  the  distinction 
between  courts  of  record  and  others,  both  circuit  and  probate  courts 
being  declared  courts  of  record,  and  not  in  terms  made  subject  to 
the  supreme  court  by  the  constitution,  except  as  by  their  nature 
inferior  to  it,  no  supervisory  power  could  exist  in  either  supreme 
or  circuit  courts  over  the  probate  courts.  Yet  the  latter  have  been 
made  subject  to  the  circuit  court  and  continue  so,  and  their  powers 
arc  subject  to  legislative  control.  They  are  not  common  law  courts 
of  record. 

There  is,  however,  a  significant  difference  between  the  supreme 
and  circuit  courts  in  regard  to  the  scope  of  their  supervisory  juris- 
diction. Tlic  circuit  court  has  not  l:)cen  given  any  express  power 
to  issue  writs  of  error,  which  are  the  only  writs  adapted  to  review- 
ing ordinary  common  law  judgments.  In  the  charter  of  Detroit 
the  only  ])rocccdings  in  the  recorder's  court  expressly  prnvified  for 
air  appealable  to  any  other  court  are  required  to  be  ixnidxcd  to_lBe 


§     I  CKKTIOKAKI,    I X    CiE.XERAL.  57I 

supreme  court  by  "writ  of  error  or  other  process,  in  the  same 
mariner  tliat  Tike  proceedings  may  by  law  be  removed  to  the  supreme 
court  from  the  circuit  courts  of  the  state."  Laws  1883,  ^^  241.  On 
examining  tlic  charter,  it  will  be  found  that  these  courts  have  no 
like  proceedings  with  the  circuit  courts,  except  in  common  law 
cases.  Special  proceedings  are  always  statutory,  and  must  be  con- 
ducted where  the  statute  places  them,  and  the  circuit  courts  have  no 
jurisdiction  over  ordinance  cases  imder  their  original  powers. 

The  charter  unquestionably  puts  the  criminal  business,  and  the 
street  and  alle}^  cases,  expressly  beyond  the  jurisdiction  of  the  cir- 
rmt-trouTt,  either  original  or  appellate.  The  real  controversy  is 
^^Hrcther  thtr  fact  that  a  part"  of  its  jurisdiction  is  exempt  from 
cTrcuTrxorrrt' supervision  pfeverits  the  recorder's  court  from  being 
mfewef  to  the  circuit.  The  primary  purpose  of  the  recorder's  court 
was  to~se"rve  as  an  agency  of  the  city  in  enforcing  the  bylaws  and 
ordinances  and  other  municipal  business.  It  succeeded  to  the  mayor's 
court,  which,  by  the  charter  of  1827,  if  not  earlier,  was  made  a 
court  of  record,  and  vested  with  all  the  ordinary  powers  of  the 
present  recorder's  court,  except  its  jurisdiction  over  crimes.  Bv 
that  charter,  and  amendments  to  it,  the  mayor's  court  was  given  a 
very  large  common  law  jurisdiction  of  all  civil  cases  arising  within 
the  city,  in  which  the  city  was  a  plaintiff,  and  these  cases  were  re- 
quired to  be  tried  according  to  the  rules  governing  the  circuit  courts. 
Section  3  of  act  of  April  13,  1841.  Nevertheless  in  spite  of  its  char- 
acter as  a  court  of  record  trying  and  adjudicating  these  common 
law  issues,  without  reference  to  their  magnitude,  which  might  in- 
clude many  thousand  dollars,  and  which  in  their  nature  were  of 
as  high  a  nature  as  indictments,  an  appeal  lay  to  the  circuit  court 
of  Wayne  County,  subject  to  the  rules  governing  appeals  from 
justices.     Section  4,  1841. 

In  Welles  v.  City  of  Detroit,  2  Doug.  (Mich.)  jy,  an  attempt 
was  made  by  the  city  to  prosecute  a  debtor  by  attachment  proceed- 
ings in  the  mayor's  court,  claiming  that  in  common  law  city  causes 
it  had  the  same  jurisdiction  as  the  circuit,  but  the  judgment  was 
taken  directly  to  the  supreme  court  by  certiorari,  and  not  by  writ 
of  error,  where  it  was  held  that  the  civil  jurisdiction  of  this  court 
was  limited  as  expressed,  and  could  not  be  extended  by  construction 
so  as  to  embrace  this  extraordinary  remedy,  which  in  terms  was 
allowed  to  circuit  courts  by  name,  and  the  proceedings  were  quashed. 

Under  the  old  constitution,  which  did  not  define  or  grant  juris- 
diction to  the  circuit  courts,  but  left  all  but  the  supreme  court  to 
be  provided  for  at  discretion,  the  circuit  courts  had  their'  whole 
appellate  power  provided  for  by  statute.  The  mayor's  court  was 
not  only  put  under  the  circuit  court,  but  its  judgments  were  all 
open  to  appeal  and  retrial  on  the  merits.  The  supreme  court  alone 
could  issue  writs  of  error  and  certiorari  under  its  common  law  juris- 


5/2  SWIFT   V.    WAYNE   CIRCUIT  JUDGES.  §     I 

diction.  Under  the  constitution  of  1850,  as  already  seen,  the  circuit 
courts  were  empowered  to  issue  writs  of  certiorari  in  the  exercise 
of  their  supervisory  control.  In  the  circuit  court  acts  no  provision 
was  made  for  the  writ  of  certiorari,  except  in  special  cases,  and 
it  seems  to  have  been  supposed  the  power  was  entirely  statutory. 
But  when  the  question  was  brought  into  this  court,  it  was  held 
that  the  right  to  issue  a  common  law  certiorari,  being  (jiven  by 
the  constitution,  could  not  be  taken  away  by  statute,  and  existed 
in  the  circuit  courts  as  an  inherent  power.  Thompson  v.  School 
District  Xo.  6  of  Crockery,  25  Mich.  483 ;  Taylor  v.  Judge  of 
St.  Clair  Circuit,  32  Mich.  95 ;  Merrick  v.  Township  Board,  41 
Mich.  631;  s.  c.  2  N.  W.  922;  Wilson  v.  Bartholomew,  45  Mich. 
41  ;  s.  c.  7  X.  W.  227. 

In  1857  the  charter  of  Detroit  was  revised  and  reenacted,  and 
then,  for  the  first  time,  the  recorder's  court  was  provided  for,  to 
succeed  and  carry  out  the  powers  of  the  mayor's  court  substantially 
as  before ;  but  it  was  also  to  have  exclusive  jurisdiction  for  the  trial, 
but  not  for  finding  of  indictments,  of  all  indictable  crimes  committed 
in  the  city  of  Detroit.  In  the  trial  of  these  cases,  and  in  reviewing 
them,  the  general  laws  of  the  state,  as  provided  for  the  circuits, 
were  made  by  the  charter  to  apply,  and,  as  already  suggested,  the 
removal  to  the  supreme  court  was  to  be  in  the  same  way  provided 
for  like  cases  in  the  circuit  courts.  Charter,  c.  6,  §  24,  and  subse- 
quent sections  passim.  In  this  charter  the  system  of  procedure  for 
other  cases  was  otherwise  regulated,  and  the  jurisdictions  were 
kept  separate,  not  only  in  beginning  suits  and  issuing  process,  but 
also  in  employing  city  officers  for  city  cases,  and  the  local  criminal 
officers  representing  the  ordinary  criminal  authority  for  criminal 
cases.  In  a  recent  revision  of  the  charter,  in  which  these  matters 
were  partially  confounded,  so  as  to  give  as  was  claimed,  exclusive 
and  different  methods  of  prosecution  and  complaint  to  the  recorder's 
court,  we  held  there  was  ho  such  distinction,  and  the  amendment 
as  far  as  attempting  it,  invalid.  Prosecuting  attorney  v.  Judges  of 
the  Recorder's  court,  26  N.  W.  694. 

There  can  be  no  doubt  that,  at  least  up  to  1857,  the  mayor's  court 
was  legally  regarded  as  an  inferior  court,  subject  to  the  review  of 
the  circuit.  It  is  equally  clear  that  the  recorder's  court  is  the  same 
court,  with  an  enlarged  jurisdiction.  It  is  also  apparent  that  in 
giving  the  broader  jurisdiction,  not  Only  where  its  methods  and 
cf)nditions  in  the  new  jurisfliction  prescribed,  but  special  provisions 
were  made  for  a  review  of  the  judgments  rendered  under  it.  No 
t)rr)vision  wliatcvcr  is  ex]:)ressly  made  for  the  review  of  the  action 
'»f  the  -court  niulcr  the  ordinances.  Tt  was  claimed,  in  a  litigation 
that  arose  in  an  ordinance  case  several  years  ago.  that  the  section 
which  gives  the  jurisdiction  on  ai)peal  to  suiircmc  court  on  con- 
victions, in  analogy  to  circuit  court  cases,  of  similar  character,  con- 
structivelv   applied   to   convictions   under   ordinances.      But    in   the 


§    I  CERTIORARI,   IN   GENERAL.  573 

several  controversies  which  came  up  consecutively  between  the 
city  and  the  same  citizen  for  an  alleged  illegal  closing  of  an  alley, 
the  double  character  of  the  recorder's  court,  and  of  appellate  pro- 
ceedings from  it.  was  pointed  out  and  distinguished. 

In  People  v.  Jackson,  7  Mich.  432,  respondent  had  been  con- 
victed b}'  the  recorder's  court,  under  a  regular  criminal  information, 
for  closing  the  alleged  alley,  and  the  case  was  properly  brought  up  be- 
fore sentence,  and  decided  here  on  the  exceptions.  But  the  case 
was  held  to  involve  no  criminal  offense,  and  the  conviction  was  set 
aside  for  that  reason.  Thereupon  the  city  prosecuted  him  under 
an  ordinance  intended  to  cover  the  case,  and  he  was  again  convicted. 
The  recorder  undertook  to  reserve  the  questions  for  consideration 
by  this  court,  as  could  have  been  done  under  the  criminal  practice, 
and  reliance  was  had  on  the  clause  of  the  charter  before  referred 
to  as  regulating  removals  to  this  court.  The  court  held,  that  when 
he  tried  cases  under  the  ordinances,  he  was  acting  merely  as  nm- 
mcipal  officer,  enforcing  regulations  of  which  wc  could  not  take 
jtidictal  iK^tico,  and  that  no  cases  could  be  reserved  except  where 
ITe  performed  the  functions  of  a  circuit  judge  under  the  laws  of  the 
state.  The  prcK-ceding  was  therefore  dismissed.  A  second  attempt 
was  made  in  the  same  case  to  bring  it  up  on  exceptions  before 
judgment.  People  v.  Jackson,  8  Mich.  no.  This  was  dismissed 
on  the  same  ground,  and  the  double  character  of  the  court  was 
again  fully  discussed,  and  the  charter  construed,  as  before,  as 
keeping  the  two  jurisdictions  separate.  It  was  brought  up  a  third 
time  on  writ  of  error  (Jackson  v.  People,  8  Mich.  262),  and 
dismissed  again  as  not  subject  to  writ  of  error.  It  was  last  brought 
up  on  certiorari  (Jackson  v.  People,  9  Mich,  in),  when  the  con- 
viction was  quashed  for  excess  of  jurisdiction  in  attempting  to  decide 
by  a  municipal  court  a  controversy  which  involved  rights  that 
could  only  be  determined  by  the  laws  and  courts  of  the  state. 

We  have  fonn.l  no  authority  for  holding  that  a  municipal  court 
changes  its  relative  position  to  other  Courts  "by; liecoming  invested 
with  new  powers  which  those  courts  cannot  review.  Such  instances 
are  by' no  means  rare,  and  it  has  always  been  foun"^d  possible  to 
keep  the  two  powers  distinct.  All  common  law  courts  of,  record 
ilT~The~tTmted  States  have  been  given  certain  powers  under  the 
naturalization  laws  of  Congress,  but  this  has  never  been  supposed 
to  bring  that  jurisdiction  under  the  control  of  state  appellate  courts. 
The  supreme  court  of  the  United  States  has  recognized  the  exist- 
ence of  special  powers  granted  to  circuit  and  district  courts  as  out- 
side of  its  judicial  cognizance.     U.  S.  v.  Feriera,  13  How.  40. 

In  Auditor  General  v.  Pullman  Palace  Car  Company,  34  INIich, 
59,  where  the  circuit  court  of  Ingham  county  was  given  jurisdic- 
tion of  appeals  from  the  auditor  general  in  certain  cases,  we  held 
that  the  proceeding  was  aside  from  the  ordinary  judicial  juris- 
diction and  therefore  not  subject  to  our  review  in  anv  shape. 


574  SWIFT   V.    \VA\NE   CIRCUIT   JUDGES.  §    I 

In  Southwick  v.  Postmaster  General,  2  Pet.  442,  the  case  was 
quite  parallel  with  this.  There  was  a  suit  brought  in  the  district 
court  of  the  United  States  having  circuit  court  powers  at  common 
law,  and  judgment  was  rendered,  which  was  removed  regularly  by 
writ  of  error  to  the  circuit  court  of  the  same  district,  where  it 
was  affirmed.  A  writ  of  error  was  then  taken  from  the  circuit 
court  to  the  supreme  court.  Under  the  act  of  congress  the  dis- 
trict court  had  been  empowered  to  act  in  such  cases  either  as  a 
district  or  a  circuit  court,  and  it  did  not  appear  on  the  record  in 
which  capacity  it  acted.  If  acting  as  a  Detroit  court,  the  action 
of  the  circuit  court  on  error  could  not  be  reviewed  by  the  supreme 
court.  If  acting  as  a  circuit  court,  the  decision  of  the  regular 
circuit  court  on  error  from  it  could  be  reviewed  by  the  supreme 
court.  Chief  Justice  Marshall  held  it  nuist  be  presumed  to  have 
been  acting  as  a  district  court,  and  so  the  writ  of  error  was  dis- 
missed. He  said:  "Had  the  court  for  the  northern  district  of 
New  York  possessed  no  circuit  powers,  it  could  still  have  taken 
cognizance  of  this  cause.  By  conferring  on  it  the  powers  of  a 
circuit  court,  congress  has  added  nothing  to  its  jurisdiction  in 
this  case.  In  taking  cognizance  of  it,  a  district  court  has  exercised 
the  ordinary  jurisdiction  assigned  to  that  class  of  courts.  No 
extraordinary  powers  were  brought  into  operation.  We  cannot  say 
that  a  district  court,  performing  the  appropriate  duty  of  a  district 
court,  is  sitting  as  a  circuit  court  because  it  possesses  the  powers 
of  a  circuit  court  also." 

The  fact  that  the  recorder's  court  acts  as  a  state  criminal  court 
in  criminal  cases  does  not  make  it  any  the  less  a  city  court  in 
city  cases.  It  has  already  been  decided  that  these  ordinance  cases 
involve  not  staTe~law,  but  city  law,  and  must  be  reviewed  on. c£r- 
jiorari.  So  far  as  these  cases  are  concerned,  the  charter  has  not 
been  sulDstantially  changed,  and  there  is  no  reason  to  suppose  the 
legislature  meant  any  change.  The  remedy  by  appeal  has  been 
dropped  very  wisely,  as  state  courts  are^TTdr  designed  to  act'^a?' 
municipal  courts ;  but  no  interference  has  been  had  to  provide  any 
other  remedy,  so  that  the  certiorari  is  the  only  one  to  be  used. 
The  rq,view  of  such  cases  is  as  appropriate  for  the  circuit  court 
now  as  it  was  prior  to  1857.  It  is  plain  enough  that  a  nuuiicipal 
court  is  presumptively  inferior  to  a  circuit  court,  so  far  as  its  juris- 
diction is  not  of  equal  character.  We  can  see  no  difficulty  what- 
ever in  separating  the  two  jurisdictions.  That  separation  exists  in 
the  circuit  courts  themselves,  between  law  and  equity,  between  civil 
and  criminal  jurisdiction,  between  original  and  appellate  jurisdiction. 

We  think  tlie  certiorari  was  ]:)ropcrly  issued,  and  the  application 
of  rclalr»r  must  be  denierl.  No  costs  will  be  awarded,  as  the  relator 
acts  officially  in  an  entirely  ])ropcr  effort  to  have  his  duty  defined. 

Ci'lic  other  justices  concurred.) 


§    I  CERTIORARI,   IN    GENERAL.  575 

See  also  State  v.  Harrison,  141  Mo.  12;  People  v.  Hoffman,  166  N.  Y. 
462;  State  V.  Judge,  40  La.  Ann.  434;  Locke  v.  Lexington,  122  Mass.  290; 
Wilson,  In  re,  32  Minn.  14S ;  People  v.  Betts,  55  N.  Y.  600;  Jordon  v. 
Hayne,  36  Iowa,  9;  Merrick  v.  Arbela,  41  Mich.  630;  Roanoke,  Ex  parte, 
117  Ala.  547;  Archie  v.  State,  99  Ga.  23;  State  v.  Timme,  70  Wis.  627; 
Berlin  v.  Dalton,  171  Mass.  338;  Jaqulth  v.  Hale,  31  Mich.  430;  People 
V.   Medical    Society,  84   Hun    (N.   Y.),  448. 

In  New  Jersey  the  writ  has  been  granted  to  test  the  validity  of  an  ordi- 
nance providing  for  the  payment  of  an  officer's  salary  But  this  cannot 
be  considered  other  than  as  an  unwarranted  extension  of  the  true  func- 
tions of  the  writ.     See  Christie  v.  Bayonne,  64  N.  J.  L.   191. 

In  Peters  v.  Peters,  8  Cush.  (Mass.)  529,  the  writ  was  refused  by  Shaw, 
C.  J.,  to  the  probate  court  on  the  ground  that  there  was  no  supervisory 
jurisdiction  by  certiorari  over  ecclesiastical  courts.  But  it  is  the  practice 
in  many  states  to  bring  probate  proceedings  up  for  review  by  certiorari. 
Boynton,  Ex  parte,  44  Ala.  261;  Glover,  v.  Reid,  80  Mich.  228;  State  v.' 
Probate  Court,  51  Minn.  241;  Derton  v.  Boyd,  21  Ark.  264;  Coupland 
V.  Tullar,  21  Tex.  523;   State  v.  Jackson,  93  Mo.  App.  516. 


3.     Existence  of  other  remedies. 

LYNCH  V.  CROSBY  et  al. 

1883.     Supreme  Judicial  Court  X)f  Massachusetts.     134  Mass. 

313- 

Morton,  C.  J. — This  is  a  petition  for  a  writ  of  certiorari  to  be 
directed  to  the  judge  and  clerk  of  the  Police  Court  of  Lowell. 
The  writ  is  sought  not  to  be  used  as  ancillary  to  any  other  process, 
but  for  the  purpose  of  quashing  the  proceedings  of  the  said 
police  court  in  issuing  a  search  warrant  for  the  seizure  of  intoxi- 
cating Ifquofs."  A  writ  of  certiorari  lies  only  to  correct  the  errors 
of  inferior  courts,  or  ofhcers  acting  judicially,  in  proceedings  not  ac- 
cording to"  the  course  of  the  common  law.  It  does  not  lie  to  revise 
the'acts  of  a  court  whose  procedure  is  according  to  the  course  of  the 
common  law,  and  whose  errors  can  be  corrected  by  appeal  or  excep- 
tioflsror  by  a  writ  of  error.  Gen.  Stats,  c.  145,  §  8.  Pub.  Stats,  c. 
186,  ^  7.  Farmington  River  Power  Co.  v.  *  Commissioners,  112 
Mass.  206.  Tewksbury  v.  County  Commissioners,  117  Mass.  563. 
Police  courts  are  courts  of  record,  of  common  law  jurisdiction, 
civil  and  criminal.  .  In  receiving  compjajnt^,  and  issuing  warrants 
for  the  seizure  of  intoxicating  liquors  illegally  kept,  they  proceed  ac- 
cording to  the  course  and  principles  of  the  common  law.  Any, 
decisions  of  the  court  may  be  appealed  from.  At  the  trial  in  the 
superror  court,  any  legal  objections  to  the  complaint  and  war- 
rant may  be  taken  and  are  the  subjects  of  appeal  or  exceptions, 
or  in  a  proper  case,  of  a  writ  of  error.  Though  the  cause  for  the 
search  and  seizure  did  not  exist  at  common  law,  but  is  created 


576  MARGARET   ENXIS  V.   LAWRENCE  M.    ENNIS.  §    I 

by  Statute,  this  is  immaterial.  The  procedure  to  enforce  the  statute 
is  according  to  the  course  of  the  common  law,  in  the  same  manner 
as  are  proceedings  by  indictment  and  trial  for  any  new  ofifence 
created  by  statute. 

"\Vithout  considering  other  objections  to  the  petition,  we  are 
there fore~ortEe  opinion  that  the  court  has  no  jurisdiction  to  issue 
a  writ  of  certiorari  in  the  case  before  us.     Petition  dismissed. 


MARGARET  ENNIS  v.  LAWRENCE  M.  ENNIS. 
1884.     Supreme  Court  of  Illinois,     iio  111.  78. 

Mr.  Justice  Scott  delivered  the  opinion  of  the  court. 

The  petition  in  this  case  was  presented  by  Margaret  Ennis  in 
the  circuit  court,  and  was  for  a  common  law  writ  of  certiorari, 
to  bring  before  that  court  certain  proceedings  had  in  the  probate 
court  of  Cook  County,  that  the  same,  on  inspection,  might  be  quashed  _ 
and  held  for  naught.  It  appears  from  the  allegations  it  contains, 
tlhat  the  petitioner  was  Tawfully  married  to  James  Ennis,  since  de- 
ceased, who  at  the  time  of  his  death  left  him  surviving  the  petitioner, 
his  widow,  and  nine  children  by  a  former  marriage,  and  one  child 
by.  his.,  marriage  with  petitioner,  all  of  whom  were  minors  at  the 
time  of  his  death,  except  perhaps,  one  or  two  of  his  first  children, 
and  who  resided  with  him  and  constituted  a  part  of  his  family ; 
that  afterwards  such  proceedings  were  had  in  the  probate  court 
that  letters  of  administration  were  granted  the  petitioner  and  Law- 
rence M.  Ennis,  and  on  appraisers  being  appointed,  as  the  law 
directs,  they  set  apart  the  "widow's  award,"  in  value  $1,960.  The 
grievance  alleged  is.  that  subsequently,  on  the  third  day  of  June, 
1881,  the  ])robate  court  "divided"  or  "apportioned"  the  "widow's 
award,'*  |?iving  to  petitioner  and  her  child  by  her  marriage  with 
James  Ennis,  since  deceased,  $750,  and  to  the  seven  minor  heii's'of 
"her  deceased  husband,  .$i.2io.  It  is  that  order  of  the  probate  court 
so"  entered  thai"  petitioner  seeks~To  liavc"  quashed  and  held  for 
naught  in  this  proceeding.  It  is  thought  this  cannot  be  done 
on  a  common  law  writ  of  ccrtwran.  Tin  jimpcr  remedy  idr""a 
party  aggrieved  in  such  case  would  be  on  appeal  to  the  circiiit 
court.  Undoubtedly  the  probate  court  has  general  jurisdiction  in  all 
matters  touching  tJie  settlement  and  administration  of  the  estates 
of  deceased  persons,  and  orders  concerning  the  "widow's  award" 
come  within  the  scojie  of  that  general  jtu-isdiction.  It  is  not  neces- 
sary now  to  consider  whether  the  prol:)ate  court  proceeded  irregu- 
larly in  making  the  order  r()nii>lained  of.  as  that  question  cannot 
be  adjudicated  in  this  proceeding.     The  law  is,  a  common  law  writ 


§     I  CEK'IIOKAKI,    IN'    GENERAL.  577 

of  certiorari  will  lie  only  to  inferior  tribunals  or  jurisdictions  in 
cases  where  they  proceed  illegally,  as  it  is  alleged  the  probate  court 
did  in  this  instance,  where  no  appeal  or  mode  of  directly  reviewing 
their  proceedings  is  provided  or  exists  under  the  law.  (Miller 
V.  Trustees  of  Schools,  88  111.  26.)  In  cases  like  the  one  being 
considered,  the  statute  has  expressly  given  a  remedy  for  any 
error  committed  by  the  probate  court,  by  an  appeal  to  the  circuit 
court,  as  this  court  has  decided  in  Ennis  v.  Ennis,  103  111.  95.  The 
w:rit  of  certiorari  was  therefore  properly  quashed,  as  was  done  by 
the  cuxult^^^GOwt"     *     ^t     * 

The  judgment  of  the  appellate  court  will  be  affirmed. 

Judgment  affirmed. 


HAUSER  ET  AL.  V.  STATE  OF  WISCONSIN. 
1873.     Supreme  Court  of  Wisconsin.     33  Wis.  678. 

Lyon,  J. — An  information  was  duly  filed  in  the  Milwaukee  mv^nici- 
pal  court,  by  the  district  attorney,  against  the  petitioners,  charging 
triem  witli  having  published  a  certain  false,' scandalous  and  malicious 
iTbel  upon  the  "School  Sisters  of  Notre  Dame,"  a  corporation  created 
by  and  existing  under  the  laws  of  this  state. 

The  petitioners  moved  the  municipal  court  to  quash  such  in- 
format!(^n,  for  the  reason  (among  others)  that  the  publication  of. 
a"TrbcI  upon  a  corporation  is  not  a  criminal  offense.  The  court 
Ovrmrlecl  such  motion,  whereupon  the  petitioners  applied  to  a 
Justice  of  fills  court  to  allow  a  writ  of  certiorari  to  the  municipal 
C(!mrt,  to  bring 'ittp  the"r'ecord  of  the  proceedings  in  that  cotirt 
against  the  petitioners,  for  review  by  this  court.  The  writ  was 
allowed,  issued  and  served,  and  due  return  has  been  made  thereto. 

The  district  attorney,  on  behalf  of  the  state,  now  moves  to  quash 
or   supersede   the  writ. 

It  is  well  settled  bv  numerous  adjudications  of  this  court  that, 
m  this  state,  upon  ccrtwrari_  to  an  inferior  court,  the  court  oujt 
of  which  the  w'Trf""rssues  will  only  inquire  into  errors  or  defects 
whtch'  go  to  the  jurisdiction  of  the  court  below,  and  for  all  other 
error?  or  irregularities  the  party  aggrieved  must  resort  to  his 
remedy  by  appeal  or  writ  of  error..  The  rule  has  been  more  fre- 
quently applied  where  the  writ  has  been  sent  to  a  justice  of  the 
peace,  but  it  is  equally  applicable  to  any  case  where  the  writ 
issues  to  a  court  which  proceeds  according  to  the  course  of  the  com- 
mon law,  whether  of  record  or  otherwise.  The  existence  and  binding 
force  of  this  rule  were  freely  admitted  by  at  least  one  of  the 
learned  counsel  for  the  petitioners,  on  the  argument  of  this  motion. 


578  HAUSER    ET   AL.    V.    STATE   OF    WISCONSIN.  §    I 

Granting,  for  the  purpose  of  argument,  that  a  corporation  cannot 
be  the  object  of  a  criminal  Hbel,  and  that  the  municipal  court 
erred  in  holding  to  the  contrary,  the  question  to  be  determined 
is   whether  such  error  is  jurisdictional. 

The  municipal  court  has  jurisdiction  to  hear,  try  and  determine 

.criminal  prosecutions  for  libels.  This  necessarily  includes  jurisdic- 
tion to  hear  and  determine  motions  to  quash  informations  therefor. 

"and  to  determine  whether  the  information,  in  a  given  case,  does 
or  does  not  charge  that  the  accused  has  committed  a  criminal  of- 
fense. In  this  case  the  municipal  court  had  jurisdiction  of  the  per- 
sons of  the  petitioners,  and  in  a  regular  proceeding  in  the  case,  it 
determined  that  the  information  charges  that  the  defendants  pub- 
lished a  criminal  libel.  Conceding  this  determination  to  be  erroneous, 
is  the  error  a  jurisdictional  one?  It  may  be  so,  in  the  sense  that 
no  court  has  jurisdiction  to  make  a  wrong  decision  ;  but  it  is  a  juris- 
dictional error  in  that  sense  which  will  authorize  this  court  to  review 
and  correct  it  on  ceriorari?  Is  it  not  perceived  that  this  case  differs 
on  principle  from  any  other  criminal  prosecution  in  which  the  indict- 
ment or  information  fails,  for  any  reason,  to  show,  by  apt  and  proper 
averments,  that  a  criminal  offense  has  been  committed ;  or  from  a 
civil  action,  the  complaint  in  which  fails  to  state  facts  sufficient 
to  constitute  a  cause  of  action.  Should  the  court  hold  erroneously 
that  the  indictment  or  information  charges  a  criminal  ofifense,  or 
that  the  complaint  states  a  cause  of  action,  if  it  has  jurisdiction  of 
the  person  of  the  defendant  and  of  the  subject  matter  of  the  action, 
it  will  not  be  claimed  that,  as  a  general  rule,  the  supervisory  court 
will  review  the  case  and  correct  the  error  on  certiorari.  And 
why  not?  Plainly  because  the  error  is  not  a  jurisdictional  one. 
Suppose  a  complaint  fails  to  state  a  cause  of  action,  and  an  objection 
to  the  admission  of  any  testimony  under  it  is  erroneously  overruled. 
Will  it  be  claimed  that  such  error  can  be  corrected  on  certiorari? 
Of  course  not.  And  yet  there  is  no  element  of  jurisdiction  or  want 
of  jurisdiction  involved  in  the  alleged  error  in  this  case,  that  is  not 
also  involved  in  the  case  supposed.     *     *     ''' 

Further  discussion  seems  unnecessary.  We  conclude,  as  the 
court  did  in  prin<ii)lc,  at  Irast  in  Arnold  v.  Booth,  14  Wis.  180, 
that  tlie_  question  arising  upon  the  record  is  not  one  really  going 
to  the  jurl.flii iidii  of  the  municipal  court,  1)ut  Is  whether,  in  factj]" 
the  pctlti(Jiurs  arc  charged  in  the  information  with  having  published 
a  criminal  h'bcl.  They  claim  Ihal  they  are  not  thus  charged,  while  the 
counsel  who  roi)rescnt  the  state  claim,  and  the  nnuiicipal  court  holds, 
that  they  are  thus  charged.  Upon  this  writ  and  in  this  proceeding 
Cas  we  have  endeavored  to  show),  this  coiirt  cannot  jiropcrly  decide 
the  controversy.  We  therefore  refrain  from  expressing_or  intimat- 
ing an  opinion  nj)on  its  merits.     *     ^    * 


§     I  CERTIORARI,   IN    GENERAL.  579 

By  the  court. — The^m9t[onJto  quash  the  writ  is  granted,  and  the 
cause  remitted  for  further  proceedrngs  "^according  to  law. 

See  also  Ransom  v.  Cummins,  66  Iowa  137 ;  Ray  v.  Parsons,  14  Tex. 
370;  Dean  v.  State,  63  Ala.  153;  State  v.  Cohen,  13  S.  Car.  198;  Mc- 
Naughton  v.  Evert,  116  Mich.  141;  .State  v.  St.  Paul,  104  La.  103;  Noble 
V.  Superior  Court,  109  Cal.  523 ;  National  Bank  v.  City  of  Elmira,  53 
N.  Y.  49;  Kern  v.  Foster,  16  Ohio  274;  State  v.  Shelton,  154  Mo.  670; 
Reynolds  v.  West  Hoboken,  63  N.  J.  L.  497;  White  v.  Wagar,  185  111.  195; 
State  V.   O'Neill,   104  Wis.   227;    Weed  v.   Lewis,  80  Md.    126. 


4.     Adequacy  of  other  remedies. 

HENRY  ROSER,  next  friend  of  negro  woman  ANTOINETTE 
ET  AL.  V.  MARLOW  et  al.,  executors,  etc. 

1837.     Superior  Court  of  Eastern  District  of  Georgia.     R.  M. 

Charlton,  542. 

(Application  for  certiorari  to  review  the  decision  of  the  court  of 
ordinary  in  refusing  to  allow  probate  of  will  directing  the  emancipa- 
tion of  certain  slaves.) 

Charlton,  J. —  (After  stating  the  facts.)     *     *     * 

*  *  *  Lj:annot  accede_to  the  truth  of_Jh£„^prDpQsitipn,  (ad- 
vanced by  the  counsel  for  the  executors,  who  resist  this  application), 
which  denies  that  a  cci'tiorqri  can  issue,  to  bring  up  a  decision  of  the 
court  of  ordinary.  It  is  true  that  under  the  constitution  of  our 
state,  an  appeal  is  allowed  from  the  decisions  of  that  court  to  the 
superior  court,  and  the ^ct  of  1805,  (Prince's  di^'est,  166)  ])rovi(Ies. 
for  the  manner  in  which  that  appeal  shall  be  entered  ;  but  the  con- 
stitution also  declares,  that  the  "superior  courts  shall  bave  j^owtr 
tr»  correct  "errors  in  mferior  Judicatories  by  writ  of  certiorari." 
There  is  nothing  in  the  constitution  or  laws  of  our  state,  which 
prohibits  a  certiorari  from  being  issued,  because  an  appeal  is  given 
from  the  same  tribunal  to  which  it  issues.  The  Judiciary  Act 
of  1799  provides,  both  for  an  appeal  and  a  writ  of  certiorari,  from 
the  inferior  court.  The  nature  of  the  two  remedies  is  well  under- 
stood, and  one  of  the  distinctions  which  has  been  drawn  between 
them  is,  tha£an  appeal  can  only  be  had  zi'henJtiscA'pressIy  giz'cji, 
and^a  certiorari  always  lie's,'  nlUcfs  it  has  been  expressly  taken 
azvay.  (irXlhitTFs'geh.'prac.  3y47~5.")  "Where  any  court  is  erected 
^y  statute,  a  certiorari  lies  to  it."  (i  Ld.  Raymond  469.  Groenvelt 
V.  Eurwell,  s.  c.  i  Salk.  144.) 

This  point  has  been  determined  by  one  of  mv  predecessors  in  tlie 
case  of  McCaskill  v.  McCaskill,   (T.  U.  P.  Charlton's  Rep    151), 


5B0  MEMPHIS  &-  CHARLESTON   R.   R.   CO.   V.   BRAN  NUM.  ^    I 

and  the  language  used  is,  "the  party  has  now  his  election  either 
to  apply  for  a  certiorari  upon  the  basis  of  error,  or  to  appeal. 
The  judgment  of  this  court  upon  the  first  must  be  error,  or  no  error, 
upon  the  latter,  an  affirmance  or  reversal  of  the  inferior  judiciary." 

^  ;J:  ^ 

Certiorari  to  issue  as  prayed  for. 


MEMPHIS    &    CHARLESTON    RAILROAD    COMPANY    v. 

BRANNUM. 

1892.     Supreme  Court  of  Alabama.     96  Ala.  46.1  :  11  South,  468. 

Thorington,  J. — The  case  originates  from  a  suit  commenced  in 
the  court  of  a  justice  of  the  peace,  wherein  appellee  had  a  summons 
issued  to  "Thomas  G.  Morrow,  as  agent  of  tlie  Memphis  &  Charl^e^ 
ton  R.  K."  and  the  complaint  filed  has  the  following  caption :  "Jas. 
C.  Tjraiinum  v.  M.  &  C.  R.  R."  The  summons  was  indorsed  "Sum- 
mons T.  G.  Morrow,  as  agent."  "Executed  July,  1889."  Xl^^^ 
docket  of  the  justice  contains  the  following  entries:  "July  i8th. 
Su!Timons~and  stibpoenas  returned  executed."  "Jnly  27.  Contin- 
ued by  defendant  until  Sep.  2,  1889."  It  further  shows  a  judgment 
by  default,  entered  Sep.  2,  1889,  against  "defendants."  On  the 
6th  day  of  September,  1889,  before  the  expiration  of  the  time 
allowed  by  law  for  appeals  from  judgments  of  a  justice  of  the 
peace,  the  Memphis  &  Charleston  Railroad  Company  applied  for  and 
obtained  from  the  judge  of  the  eighth  circuit  a  coiumon  law  writ  of 
certiorari  returnable  into  the  circuit  court  of  Madison  County, 
b_\-  which  the  records  and  proceedings  licforc  the  justice  were  re- 
turned into  that  court,  where,  in  iiK.iion  of  appellee,  the  writ  of 
certiorari  was  dismissed,  and  judgment  for  costs  rendered  agSltirt 
appellant  and  the  sureties  of  his  certiorari  bond,  and  from  ttiat 
judgment  this  appeal  is  taken.     *     *     * 

CThe  court,  after  holding  that  service  of  summons  in  said  suit 
was  not  according  to  law,  proceeded:) 

*  *  *  "Certiorari,  at  common  law,  is  an  extraordinary  legal 
remedy.  It  can  only  be  invoked  when  there  is  a  legal  right  and  no 
other  legal  remedy.  When  an  appeal  lies,  certiorari  is  not  the  proper 
remedy."  The  foregoing  is  a  quotation  from  the  opinion  of  Chief 
Justice  Stone  in  the  case  of  Railroad  Company  v.  Christian,  82  Ala. 
307,  I  South.  T2T.  lUit  the  appeal  here  referred  to  is  surely  such  an 
appeal  as  will  be  efiFectual  <o  reach  the  defects  complained  of,  or, 
in  other  words,  it  must  afiford  an  adequate  remedy.  This  is  mani- 
fest from  what  follows  in  the  same  opinion,  where  it  is  said:  "What 
we  do  deride  is  thnf   in  cases  where  ample  redress  can  be  obtained 


§    I  CERTIORARI,   IX    GENERAL.  581 

on  a  trial  dc  novo,  and  the  right  of  appeal  is  unobstructed,  the  con- 
ditions are  wanting  which  justify  a  resort  to  this  severe  remedy ;  a 
clear  legal  right  and  no  other  legal  remedy."  The  remedy  by  appeal 
from,  judgments  of  justices  of  the  peace  is  afforded  by  section 
3398  of  the  code,  and  on  such  appeals  the  case  must  be  tried,  "de 
novo,  according  to  equity  and  justice,  without  regard  to  any  de- 
fect in  the  summons  or  other  process  or  proceedings  before  the 
justice."  Code  1886,  §  3405.  Th.e,...effect  of  this  statute  is  such 
that,  had  the  railroad  company  taken  an  appeal  to  the  circuit 
court,  such  an  appeal  \Yould  have  operated  as  a  waiver  of  all 
defects  in  the  summons,  process  and  proceedings  before  the 
justice ;  and  the  defendant  would  have  been  compelled  to  litigate 
in  the  first  instance  in  the  higher  and  more  expensive  tribunal. 
withouTever  having  had  its  da}-  in  the  magistrate's  court.  This 
woiTtd""TitTr'T^~"tn "  harnum}'  with  the  policy  of  the  law,  which 
creates  magistrate's  courts  for  the  speedy  and  inexpensive  disposi- 
tion of  cases  of  minor  importance,  and  would  not  be  the  ample  re- 
dress necessary  to  be  afforded  by  appeal  in  order  to  supply  the  place 
of  the  remedy  by  the  common  law  certiorari.  If  this  were  a  case  in 
which  it  appeared  from  the  record  and  proceedings  of  the  magis- 
trate's court  that  the  justice  acquired  jurisdiction  of  defendant's 
person  in  any  manner,  however,  irregular,  we  would  be  bound 
by  the  former  decisions  of  this  court  to  hold  that  the  remedy  by 
appeal  was  adequate,  and  that  the  common  law  writ  of  certiorari 
would  not  lie ;  but  to  so  hold  in  this  case,  w^ould  in  effect  be  to 
confer  original  jurisdiction  on  the  circuit  court  in  a  case  the  law 
contemplates  should  originate  in  a  magistrate's  court,  because  the 
eiTect  of  such  an  appeal  would  be  to  compel  the  party  appealing  to 
try  in  the  circuit  court  a  case  to  which  he  had  never  been  a  party 
in  the  magistrate's  court.  Such  a  result  we  think  jusifies  a  resort 
to  the  "severe  remedy"  of  the  common  law  writ  of  certiorari,  as  it  is 
characterized  in  the  case  of  Railroad  Company  v.  Christian,  supra. 
In  that  case,  this  court  held  that  the  circuit  judge  did  not  err  in  refus- 
ing the  writ ;  that  the  remedy  by  appeal  was  adequate,  because  the 
defendant  could,  on  such  appeal,  raise  the  question  of  jurisdiction 
in  the  circuit  court.  But  in  that  case  the  defect  in  the  proceedings 
before  the  magistrate's  court  was  want  of  jurisdiction  of  the 
subject  matter,  which  could  not  be  waived  by  appeal  or  other- 
wise ;  while  in  the  case  before  us  the  want  of  jurisdiction  is  of  the 
person,  which  the  defendant  could,  by  virtue  of  the  statute,  waive 
by  taking"'the  benefit  of  an  appeal  to  the  circuit  court.  The  circuit 
court  erred  in  dismissing  the  writ  of  certiorari,  and  its  juHgrrTefiTTs 
'reversed  a n d  airn tilTed.,  "pudgnien!:  wHT'lje  here  rendered  quashing 
ttre  juHgment  in  the  magistrate's  court,  as  prayed  in  the  petition 
filed  in  the  circuit  court  by  appellant.     Reversed  and  rendered. 


582  STATE    EX    REL.     HAMILTON     V.     PROBATE    JUDGE.  §     I 

STATE    EX    REL.    HAMILTON    v.    GUIXOTTE,    PROBATE 

JUDGE. 

1900.     Supreme  Court  of  Missourl     156  Mo.  513. 

Sherwood,  J. — The  will  of  Thomas  G.  Hall  was  admitted  to  pro- 
bate  ill  the  probate  "court  l)f  Jackson  county,  and  letters  testamentary 
without  reiiuirement  of  bond  issued  ti  ►  his  (lauo-liicr  and  executxix, 
Maggie  McCunc.  These  things  beuig  done,  i;elator  brought  suit 
in  the  circuit  court  of  Jackson  county  to  contest  the  wTTI  X~ 
ctiange  of  venue  transferred  this  CSHse^to  the  Cass  Circuit  Court. 
Pending  this  suit,  the  ..pr,obiite_  court  appointed  aiL„.administrator 
poicTcntc  lite  of  Hall's  estate,  and  ordered  the  executrix  to  turn 
over  the  estate  to  him.  which  was  done.  Tloe.  will  contest  in  Cass 
county  resulted  in  esial)lishing  the  paper  ^\•riting  as  the  lastwiH 
of  Hall,  and  tlTcreu])(in  relator  paid  the  costs,  and  appealed  to  this 
court  but  gave  no  bond;  that  appeal  is  still  pending.  .I'pon  being 
advised  of  the  result  of  the  will  contest  _in  the  Cass  Circuit  Court, 
the' executrix  applied  to  be  reinstated  in  her  former  position;  her 
application  was  granted  and  relator  ordei^ed  to  turn  the  estate  over 
to  her.  To  prevent  execution  of  this  order  certiorari  is  prayed  and 
a  motion  to  quash  that  order  interposed.     *     *     * 

(The  court  held  that  an  order  of  the  probate  court  revoking 
letters  of  administration,  issued  under  R.  S.  Mo.  sec.  13,  1889,  made 
after  the  determination  of  a  will  contest  in  the  circuit  court,  but 
pending  an  appeal  therefrom,  was  erroneous ;  that  when  the  suit 
contesting  the  validity  of  the  will  was  transferred  to  the  circuit 
court  the  probate  court  lost  its  jurisdiction  to  revoke  letters  of  admin- 
istration.)    *     '•'     * 

4.  Having  proceeded  thus  far,  we  come  down  to  the  question 
of  the  remedy  employed  in  this  case  ;  is  certiorari  the  proper  remedy? 
There  is  no  doubt  but  what  an  ai:)peal  would  lie  from  the  order 
of  the  probate  court  reinstating  the  executrix  in  her  former  position. 
( R.  S.  1899,  sec.  278.)  And  it  has  been  broadly  stated  that  certiorari 
will  not  issue  where  remedy  exists  by  either  appeal  or  writ  of  error. 
(State  ex  rel.  Mo.  &  Kan.  Coal  R.  R.  Co.  v.  Shalton,  154  Mo.  670.) 
In  State  ex  rel.  Garth  v.  vSwitzlcr,  143  Mo.  287,  however,  where  an 
a])])cal  might  have  been  had  from  the  order  of  the  probate  court, 
certiorari  was  awarded  and  the  cause  heard  and  dis])ose(l  of  in 
this  court. 

Hut  thcLStatcmentthat^f^r/torflzi  will  not  issue  where  either  appeal 
•  •'  'rror  goes,  though  frequently  met  with  in  text  writers,  and  in 
■  '■  re|>orts,  is  neither  strictly  true,  nor  accurate;  there  are  marked 
exceptions.  Thus  where  the  exigencies  of  the  cnsc  are  such  that 
the  ordinary  metTio(Ts~oT  appeal  or  error  may  imt  |>ri>\c  adequate 
CiTfnr  iu  point  of  prDmj5rne.ss  or  completeness  so  that  ,1  i  m  lial  or  total 


§    I  CEKTIORARI^  IN   GENERAL.  5S3 

failure_of_jjListice_jTiay  result,  then  certiorari  may  issue.  (Harris, 
Certiorari,  sec.  c,4.J  ~^lie  rule  that  appeal  or  ivrit  of  error  existing, 
bars  certiorari,  is  subject  to  the  qualification  that  sitcli  other  means 
of  redress,  Tn  order  to  form  a  bar,  should  be  adequate  to  meet  the 
necessities  of  the  case.  Thus  the  right  of  appeal,  while  generally 
held  an  adequate  means  of  correcting  mere  errors  committed  in  the 
exercise  of  jurisdiction,  may  prove  inadequate  to  redress  or  prevent 
a  wrong  €lone  in  the  absence  or  excess  of  jurisdiction.  (2  Spelling 
Extr.  Relf.  sees.  1918,  1963;  Railroad  v.  Brannum,  11  S.  Rep.  (Ala.) 
468;  Vaughan  v.  Ashland,  T^y  N.  W.  (Wis.)  809;  King  v.  Inhabit. 
4  Maule  &  S.  378.) 

In  this  regard,  certiorari  accomplishes  in  effect  the  same  functions 
as  does  a  court  of  equity  where  it  interposes  because  the  remedies  at 
law  are  neither  adequate,  certain  nor  complete.  But  if  the  inferior 
court  is  guilty  of  proceeding  in  the  absence  or  excess  or  usurpation  of 
jurisdiction,  then  that  court  may  be  kept  within  proper  bounds.  State 
ex  ret.  v.  Dobson,  135  Mo.  loc.  cit.  19  and  cases  cited.  And  certiorari 
is  a  summary  and  more  effective  remedy  for  judicial  excesses  than 
writ  of  error  or  appeal.     2  Spelling  Extr.  Relf.  sec.  1890. 

There  are  many  authorities  which  hold  that  it  is  the  inadequacy, 
and  not  the  mere  absence  of  all  other  legal  remedies,  and  the  danger 
of  a  failure  of  justice  without  it,  that  must  usually  determine 
the  propriety  of  this  writ.  (Lagrange  v.  State  Treas.  24  Mich.  loc. 
cit.  477 ;  Inhabitants  of  Gushing  v.  Gay,  23  Me.  9 ;  Hopkins  v.  Fogler, 
60  Me.  266 ;  Spofford  v.  Railroad,  66  Me.  26 ;  Edgar  v.  Greer,  14  la. 
loc.  cit.  212;  C.  P.  Railroad  v.  Railroad,  47  Gal.  528;  People  ex  rel. 
V.  Hill,  53  N.  Y.  547;  Knapp  v.  Heller,  32  Wis.  loc.  cit.  468.) 

An  adequate  roiicdy  Is  a  remedy  which-  is  equally  beneficial,  speedy 
and  sufficient,  not  merely  a  remedy  zvhieh  at  some  time- in  the  future 
will  bring  about  a  revival  of  the  judgment  in  the  loiver  c-aurt  cont- 
ploincd  of  in  the  certiorari  proceeding,  but  a  remedy  which  wilL 
promptly  relieve  the  petitioner  from  the  injurious  cffects_,of_  that 
Judgment  and  the  acts  of  the  inferior  court  or  tribunal.  (People 
ex  rel.v.  Gommissioners,  66  How.  Pr.  293  ;  Kirby  v.  Sup.  Ct.,  68  Gal. 
loc.  cit.  605 ;  Plavemeyer  v.  Sup.  Gourt,  84  Gal.  loc.  cit.  398 ; 
People  ex  rel.  v.  Head,  25  111.  325 ;  King  v.  Railroad,  2  B.  &  Aid. 
646;  People  v.  Mayor,  10  Wend.  395;  People  v.  State  Ins.  Go.,  19 
]\Iich.  loc.  cit.  396;  N.  A.  Dev.  Go.  v.  Orman,  71  Fed.  Rep.  764; 
Railroad  v.  Brannum,  96  Ala.  461 ;  State  ex  rel.  v.  Elkin,  130 
AIo.  90;  State  ex  rel.  v.  Rost,  49  La.  Ann.  1454;  State  ex  rel.  v. 
Hirzel,  137  Mo.  447;  State  ex  rel.  v.  Aloe,  152  Mo.  466,  and  many 
other  authorities.) 

And  it  has  often  been  decided  by  numerous  and  respectable  authori- 
ties that  the  discretionary  stage  has  passed,  when  the  writ  has  issued 
and  the  record  of  the  inferior  court  in  response  thereto  has  been 
certified ;  that  it  is  then  the  duty  of  the  court  to  hear  and  determint; 


584  MATHIAS    V.    MASON,    COUXTV    DRAIN    COMMISSIONER.  ^     I 

the  cause.  {Ex  parte  Weston,  11  Mass.  417;  Harris  v.  Barber,  129 
U.  S.  loc.  cit.  369 ;  People  v.  Brooklyn  Assessors,  39  N.  Y.  81 ; 
People  ex  rel.  v.  Brooklyn  Commissioners,  103  N.  Y.  370;  Farming- 
ton  Water  Co.  v.  Commissioners,  112  Mass.  loc.  cit.  212;  Mayor  of 
London  v.  Coxe,  2  L.  R.  H.  L.  loc.  cit.  280 ;  West  River  Bridge  Co. 
V.  Dix,  16  \'t.  446;  Trainer  v.  Porter,  45  Mo.  336;  2  Spell.  Extr. 
Relf.  sec.  1907;  Inhabitants  of  Gushing  v.  Gay,  2t,  Me.  9.)" 

In  this xase  the  record  being  properly  certified,  tlic  time  for  judi- 
cial discretion  which  we  might  have  exercised  in  refusing  the  writ 
has  passed,  and  in  performance  of  our  duty  and  in  the  exercise 
of  our  constitutional  control  over  the  inferior  tribunals  of  the  state, 
and  finding  from  the  inspection  oi  tine  record  that  the  probate_CQiirt 
acted  beyond  and  outside  its  jurisdiction  in  making  the  Q.rde.ll_re- 
instating  the  executrix,  while  the  appeal  was  still  pcnding^_w£_giajit 
the  motion  to  quash  that  order.  *  *  * 
^     (Separate  opinion  of  Valliant,  J.,  is  omitted.) 

In  accord. — Nevada  &c.  R.  Co.  v.  District  Court,  21  I^ev.  409;  Schuch- 
man  v.  Commissioners,  52  111.  App.  497;  People  v.  Donohue,  15  Hun 
(N.  Y.)  418;  Kingsland  v.  Gould,  6  N.  J.  L.  161;  Golding  v.  Jennings, 
I    Utah   135;   Oran   Highway  Com'rs    v.    Hoblit,   19   111.   App.   259. 


MATHIAS  V.  MASON,  COUNTY  DRAIN  COMMISSIONER. 
1887.     Supreme  Court  of  Michigan.     66  Mich.  524  ;  33  N.  W.  412. 

Campbell,  C.  J. — In  these  two  cases  plaintifif  in  certiorari  com- 
plains of  certain  irrc.cr.laritics  which,  if  well  alleged,  and  if  so  de- 
clared, he  claims  would  avoid  the  assessments  charged  against  him. 
The  return  takes  some  exceptions  to  his  standing  in  court  on  the  gen- 
eral merits,  but  shows  further  that  he  has  paid  the  assessments  under 
protest,  and  sued  to  recover  back  the  money.  As  a  certiorari  is  not 
a  matter  of  right  in  these  cases,  it  has  generally  l>een  refused 
if  other  remedies  are  available,  unless  under  peculiar  circumstances. 
Here  the  ])lnintiff  has  elected  another  rancdy,  under  which  he  can 
ribta:in  full  redress  if  the  assessments  are  illegal,  and  if  he  has  not: 
l)aid  them  voluntarily.  Tliere  would  be  no  propriety  in  allowing  hmi 
a  double  remedy,  and  he  shoiild  be  confined  to  the  common  law  action 
he  has  chosen.  '    "^ 

The  writ  nnist  be  dismissed,  as  improvidently  granted. 

{  Thc*"Otricr''ju slices  concifrred. ) 


§    I  CERTIORARI,   IN   GENERAL.  585 

5.     Not  a  writ  of  right. 

INHABITANTS  OF  GUSHING  v.  GAY  et  al. 

1843.     Supreme  Judicial  Court  of  Maine.     23  Me.  9,  loc.  cit. 

II   &  12. 

Whitman,  C.  J. —  *  *  *  JWrits  of  certiorari,  it  has  been 
held,  are  grantable  only  at  the  discretion  of  the  court,  and  are  not 
allowed  "ex  dcbito  jiistitiae."  Discretion,  however,  when  exercised 
by^cTcourt,  does  not  mean  precisely  what  the  word  in  common  par- 
lance would  seem  to  import.  A  legal  discretion  is  implied ;  a  discre- 
tion to  be  exercised  according  to  the  rules  of  law.  If  the  rights 
""of  a  part^'  have  been  infringed  to  liis  detriment,  by  the  erroneous 
doings  of  an  inferior  tribunal,  he  may  justly  claim  redress;  and  it 
wiTT~be  the  duty  of  a  court  to  afiford  it  to  him.  It  is  not  the  prov- 
ince of  the  court  to  undertake  to  presume,  that  it  would  be  wiser 
for  him  to  submit  to  the  injury,  or  to  conjecture  that  the  public 
interest  would  be  better  promoted  by  an  adjudication  against  him, 
and  therefore  that  it  would  not  be  discreet  to  relieve  him.  J[jLlll£. 
petitioners  are  aggrieved  by  a  proceeding  clearly  erroneous,  and 
to 'their  injury,  they  must  not  be  denied  a  remedy.  But  if  the  error 
TT'merely  in  matter  of  form,  and  the  exception  pilrely  technical, 
it  would  be  no  violation  of  their  essential  rights,  if  the  court  should 
withhold  its  interference.  Again,  if  the  error  complained  of  exists, 
yet,  in  no  wise  operates  fo '  the  injury  of  the  party  seeking  the 
remedy,  although  it  may  be  otherwise  to  some  person  who  does  not 
complain,  the  court  may,  in  such  case,  with  entire  propriety,  and 
irfthe  exercise  of  a  sound  and  legal  discretion,  refuse  its  aid.      *      * 


KNAPP  et  al.  v.  heller,  TOWN  CLERK,  etc. 

1873.    Supreme  Court  of  Wisconsin.    32  Wis.  467. 

Cole.  J. — This  is  a  common  law  certiorari  brought  to  review  the 
action  of  tlie  town  board  of  Menominee  in  fixing  the  valuation  of 
botir;pefsona.t'and  real  property  belonging  to  the  plaintiffs  in  that 
town  for  the  purpose  of  taxation.  A  motion  was  made  to  quash  the 
writ  on  several  grounds,  only  one  of  which  do  we  deem  it  neces- 
sary to  notice.  It  appears  from  the  afBdavits  read  in  support  of 
the  jTiotion  to  q{Tas!Tr"that  there  was  a  large  amount  of  personal 
property  liable  to  taxation  in  that  town  which  was  not  included  in 
the^'s'ses'srnenF.rolI.  And,  on  the  hearing  of  the  motion  to  quash. 
aTTproceedings  in  relation  to  the  personal  property  belonging  to 
fFie^ptamtifTs  were  discontinued,  and  the  writ  of  certiorari,  so  far  as 


586  KNAI-P    ET    AL.    V.    HELLER,    TOWN    CLERK,    ETC.  §     I 

it  related  to  the  personal  property, .  was,  with  the  coiis.ent.^ .of  „,the . 
"(lefendant,  dismissed.  But  the  court  ordered  that  so  far  as  the  writ 
related  to  real  estate  the  motion  to  quash  should  be  denied,  and 
on  the  final  hearing  set  aside  the  valuation  of  the  board  of  review 
of  the  real  estate.  It  is  now  claimed  that  the  writ  in  respect  to  the 
real  estate  should  have^  been  quashed  als6,"because  it  appeared  thaf 
the  aggregate  valuation  of  the  personal  property  belonging  to  ^the_ 
plaintiffs  which  Avas  liable  to  taxation  in  that  town,  was  in  fact 
placed  enough  below  its  true  value  tO'  counter-balance  any  alleged 
overvaluation  of  the  real  estate,  and  therefore  no  actual  injustice 
had  been  done  the  plaintiffs  by  the  action  of  the  board  of  review. 
The  writ,  it  is  said,  is  not  one  of  absolute  right,  but  one  resting 
i"n~the  sound  discretion  of  the  court ;  and  when  it  appears  that  no 
equitable  grounds  exist  for  issuing  the  same,  it  should  in  these  tax 
proceedings  be  dismissed.  We  think  this  position  is  sound  and 
must  be  afifirmed.  It  is  admitted  by  the  counsel  for  the  plaintiffs, 
that  t"he  writ  is  not  one  of  absolute  right,  but  that  it  is  discretionary 
with  the  court  to  award  it  or  not.  And  when  it  is  granted  to  review 
the  acts  and  proceedings  of  taxing  officers,  it  would  seem  to  be 
very  proper  for  the  court  to  inquire,  in  the  exercise  of  a  sound  legal 
discretion,  whether  the  rights  of  the  parties  suing  out  the  writ  have 
been  injuriously  affected  by  the  information  or  error  complained 
of,  and  whether  the  ends  of  justice  require  the  interference  of  the 
court  in  this  manner.  If,  for  instance,  the  evidence  shows  that  the 
personal  property  omitted  from  the  assessment  roll  more  than  coun- 
terbalances any  alleged  overvaluation  of  the  real  estate,  then  it  is  very 
evident  that  no  injustice  will  be  done  by  permitting  the  valuation 
of  the  board  of  review  to  stand,  since  the  plaintiffs  will  pay  no 
more  taxes  in  the  aggregate  than  in  equity  they  ought  to  pay.  Of 
course  if  the  plaintiffs  had  the  right  to  prosecute  this  writ  ex  debito 
jitstitiae,  these  inquiries  could  have  no  influence  in  deciding  whether 
the  writ  should  be  f|uashed.  We  should  then  have  to  consider  the 
case  as  one  brought  before  us  by  writ  of  error,  and  pronounce 
judgment  without  regard  to  these  considerations.  But  it  seems  to 
us  it  is  quite  analogous  to  a  proceeding  in  equity  to  set  aside  a  tax, 
where  the  court  in{[uires  whether  any  injustice  has  been  done,  and 
whether  there  is  any  equitable  ground  for  interference.  If  there 
is  not,  the  court  will  decline  to  interfere  in  the  matter.  And  sub- 
stantially the  same  rule  should  be  apjilicd  on  a  common  law  writ  of 
certiorari  to  review  the  proceedings  of  taxing  officers.  Even  though 
an  error  has  been  committed,  yet  if  it  a])pcars  no  injustice  has 
tiJOtl  clone,  and  that  a  party  will  pay  no  more  taxes  than  in  equity 
they  ought  to  pay,  the  court  should  quash  the  pnKcedings.  This 
view  derives  more  or  less  support  from  the  frtllowing  authorities : 
The  People  v.  The  Supervisors  of  Allegheny,  15  Wend.  198;  The 
reojjlc  v.  The  Mayor,  etc.,  of  New  York,  2  tlill,  10;  In  the  Matter 
of  Mt.  Mf)rris  Sfpiare,  id.  L4  ;  The  People  v.  Stilwell,  IQ  N.  Y.  531  ; 


§    I  CERTIORARI,  IN   GliXEKAL.  587 

Cobb  V.  Lucas,  15  Pick,  i  ;  Rutland  v.  County  Commissioners  of 
Worcester,  20  id.  71  ;  In  re  Lantis,  9  Mich.  324.  And  we  also  think 
we  ought  to  exercise  a  discretion,  even  after  a  return  made  or  a 
motion  to  quash  under  our  practice,  and  "examine  all  the  circum- 
stances, and  if  we  find  substantial  justice  has  been  done,"  dismiss 
the  proceedings. 

Upon  considering  the  case  upon  the  merits,  we  find  that  the  plain- 
tififs  claim  that  there  was  an  overvaluation  of  their  real  estate  to 
ihe  amount  of  $102,708.  We  are  satisfied  from  the  evidence  that 
there  was  no  such  excess  in  the  valuation  as  claimed  by  them.  We 
do  not  think  that  it  exceeded  the  amount  of  the  personal  property 
liable  to  taxation  in  the  town  of  Menominee  which  the  testimony 
shows  was  not  included  in  the  assessment  roll.  It  is  not  necessary 
to  presume  that  this  large  amount  of  personal  property  was  fraud- 
ulently concealed  by  them  from  the  knowledge  of  the  assessor.  It 
is  sufficient  to  establish  the  fact  that  it  was  not  listed  for  taxation 
by  the  plaintiflFs,  and  was  not  included  in  the  assessment  roll.  And 
if  the  amount  of  personal  property  omitted  from  the  roll  was  suffi- 
cienFlo  balance  any  excess'  in  thF  vahiatioii'  ofTli^Teal  estate,  then 
substantial  justice  Tias  been  done,  and  the  action  of  the  board  of 
revievv-^tiuTcT'  be  affirmed,  even  though  they  proceeded  upon  an 
incorrect  rule  in  the  valuation  of  the  real  estate.  Of  course  it 
irrafe^ no  (ITfFerence  thai  ihe  ])r()cec(ling  relating  to  the  personal  prop- 
erty has  been  discontinued.  The  plaintiffs  cannot  have  the  advan- 
tage of  this  writ  to  set  aside  the  action  of  the  board  relating  to  the 
real  estate  for  error  or  mistake  on  their  part,  and  still  avoid  the 
payment  of  taxes  on  the  personal  property,  omitted  from  the  assess- 
ment roll.  The  same  order  should  be  made  as  though  there  had 
been  no  discontinuance  concerning  the  valuation  of  the  personal 
property. 

By  the  court. — The  order  of  the  circuit  court,  reversing  and 
setting  aside  the  proceedings  of  the  board  of  review  in  respect  to 
the  real  estate  mentioned  in  the  writ,  is  hereby  reversed,  and  the 
cause  remanded  with  directions  to  quash  the  writ  and  dismiss  the 
case. 


NEWELL  ET  AL.  V.  HAMPTON. 

1893.     Court  of  Errors  and  Appeals  of  Delaw^are.     i  Marvel 

I  ;  40  Atl.  469. 

This  was  a  writ  of  certiorari  in  an  action  by  Thomas  S.  Hamp- 
ton against  Mola  M.  Newell  and  another;  issued  in  vacation  by 
The  "clerk  of  the  court  of  appeals  and  errors  to  the  superior  court 
for  Newcastle  County.     The  cause  of  action  in  the  superior  court 


588  SUMMERROW   ET  AL.   V.   JOHNSON,   COUNTY   JUDGE.  §     [ 

was  a  mechanic's  lien  claim  filed  upon  which  a.  scire  facias  was 
issued.  At  the  return  term  of  said  scire  facias,  the  defendant 
appeared,  and  suffered  judgment  by  default.  Thereupon  the  plain- 
tiff below  issued  his  lez-ari  facias,  whereupon  the  defendant  below 
sued  out  of  the  court  of  errors  and  appeals,  in  vacation,  a  writ  of 
certiorari  to  the  superior  court,  and  caused  a  citation  to  be  issued 
to  the  plaintiff  below,  the  defendant  below  having  previously  to  the 
issuing  of  the  writ  given  security,  which  was  approved  in  vacation 
by  the  chancellor.  At  the  return  term  of  the  certiorari  and  of  the 
citation,  the  respondent  caused  an  appearance  to  be  entered  for  him 
in  that  court ;  and  the  defendant  below  filed  exceptions ;  and  also 
alleged  diminution,  whereupon  the  court  of  errors  and  appeals  made 
an  order,  returnable  to  the  next  term,  requiring  all  the  proceedings 
below  to  be  sent  up.  At  the  second  term  a  motion  was  made  by 
counsel  for  the  respondent  to  quash  the  writ  of  certiorari,  on  the 
ground  that  it  had  been  improvidently  issued.     Motion  granted. 

Per  curiam.—  The  allowance  of  a  \\yiL..of  certiorari  is  a  matter 
of  sound  judicial  discretion.  That  it  is  not  a  matter  of  right 
necessarily  follows  from  the  fact  that  it  may  be  denied  in  some 
cases,  as  where  there  is  otherwise  an  adequate  remedy,  or  the  point 
involved  is  not  a  matter  of  any  serious  complaint  or  injury.  So 
^vhere  substantial  justice  has  been  done,  though  the  record  m^y 
show  the  proceedings  to  be  defective  and  informal,  but  only  tech- 
nical errors  or  inaccuracies  appear.  It  is  only  where  the  writ  is 
given  as  a  statutory  remedy  for  review  that  it  issues  as  a  matter  of 
course.  Ac^or(linL;1\  it  was  luld  h\  this  cnurt  in  Cook  v.  Electric 
Co.  (unreported),  that  where  the  writ  had  hicn  issucil,  as  it  had  in 
this  case,  without  application  to  and  Ua\r  granted  hy  the  cOurt;  it 
should  be  quashed.  Where  the  writ  has  been  improvidently  issued, 
without  application  to  the  court,  the  defect  is  not  cured  by  an 
appearance ;  and  on  the  authority  of  Cook  v.  Electric  Co.,  it  is 
ordered  that  the  writ  in  this  case  1)c  ([uashed. , 


SUMMF.RROW  ET  AE.  V.  JOHNSON,  COUNTY  JUDGE. 
1892.     Sui'RicMi-,  Court  01-  Arkansas.    56  Ark.  85;   u)  S.  W.  114, 

COCKRILL,  C.  J. — This  is  a  petition  to  the  circnit  court  of  ('Icve- 
land  county  for  a  ccrltoruri  \o  qiTrrelrthcdrdci-  of  tlic  count)  court 
directing  an  election  for  the  change  of  the  CduniN  s(ai  ni  thai  county- 
from  Toledo.  The  court  denied  the  use  of  the  u  ni.  Several  irreg- 
ularities in  the  proceeding  of  the  coimty  court  are  sought  to  be 
iiu|uirer|  into : 

I.     The  cf)urt  was  justilicd  in  refusing  to  consider  the_ questions 
for  several   reasons:      fi)   The  ])etitioners  are  not  shown  to  have 


§    I  CERTIORARI,   IN    GEXF.RAL.  589 

been  parties  to  the  proceedings  they  sought  to  quash.  Black  v. 
Brinkley,  54  Ark.  372,  15  S.  W.  1030;  liurgett  v.  Apperson,  52 
Ark.  213,  12  S.  W.  559.  (2)  If  their_interest  in  the  proceeding 
was  properly  established,  they  shpw  no  excuse  for  not  prosecuting 
aiTlippeal  Burgett  v.  Apperson,  supra.  (3)  If  both  of  these  ob- 
ji^irtfens ..AY.ere  out  of  the  way,  the  court's  action  would  still  be* 
"right.  The  writ  of  certiorari  is  not  granted  as  of  course,  even 
"Strife  suit  of  one  whose  right  of  appeal  has  been  lost  without 
lacHesr  Ifpublk  inconvenience  wouldjesult  ^_^^^^  quashing  the 
*~jir3grnent~compTained  ofj'tlie  court  may  deny  the  writ.  Black  v. 
Brmkley,'~54"Ark.  ^'/2,  15  S.  W.  1030;  Moore  v.  Turner,  43  Ark. 
243.  A  party  may  be  estopped  by  acquiescence  from  questioning 
a  judgment  void  for  want  of  jurisdiction.  Black  v.  Brinkley,  supra; 
State  V.  Leatherman,  38  Ark.  81.  The  courl  to  which  the  applica- 
tion for  the  writ  is  made  may  hear  testimony  dc  liors  the  record 
to  determine  whether  it  is  unwise  to  granJ:  the  use  of  the  writ.  Bur- 
gett V.  Apperson,  supra.  In  this  case  testimony  was  heard  by  the 
circuit  court  for  that  purpose,  but  it  was  not  preserved  by  bill  of 
exceptions,  and  is  not,  therefore,  presented  for  our  consideration. 
Affidavits,  copies  of  records  used  as  evidence,  and  depositions  do 
not  become  part  of  the  records  in  a  law  case,  except  through  the 
medium  of  a  bill  of  exceptions.  About  two  years  after  the  order 
for  the  election  was  made  this  petition  for  certiorari  was  presented. 
An^etection  upon  the  question  of  the  change  of  the  county  seat, 
and  to  what  point,  had  been  held  by  virtue  of  the  order ;  a  second 
election  to  determine  which  of  the  two  places  receiving  the  higher 
number  of  votes  at  the  first  election  would  be  the  county  seat  was 
.subsequently  held;  a  contest  was  had  in  the  county  court  as  to 
vshich  of  the  two  had  received  the  highest  number  of  votes  at  the 
second  election ;  and  an  appeal  and  trial  de  novo  of  the  same  issue 
had  been  determined  in  the  circuit  court  before  Toledo  assumed 
its  present  attitude.  That  much  we  can  ascertain  from  the  record. 
We  need  not  stop  to  speculate  as  to  what  additional  state  of  facts 
in  the  way  of  expenditures  made  by  the  county  in  providing  a 
new  court  house  and  jail,  the  change  of  county  officers  from  the 
old  site  to  the  new,  and  other  changes  the  county  court  was  author- 
ized to  make,  may  have  been  proved  to  the  satisfaction  of  the  court 
by  the  evidence  considered  by  it  at  the  trial,  and  not  preserved  by 
bill  of  exceptions.  If  anything  were  needed  bcA'ond  the  facts 
furnished  by  the  record  proper  to  justify  the  action  of  the  court, 
the  presumption  is  it  was  furnished  by  the  evidence  considered  at 
the  trial,  and  not  preserved  as  part  of  the  record. 

2.  The  judgment  of  the  county  court  ordering  the  election  dis- 
closes no  jurisdictional  defect.  It  shows  that  petitions  such  as 
the  statute  requires  were  presented  to  the  court  to  put  in  motion 
the  machinery  for  a  change  of  the  county  seat,  and  that  the  court 


590  citizens'  gas  light  go.  v.  board  of  assessors.  §  I 

found,  upon  evidence  adduced  at  the  hearing,  that  each  petition  con- 
tained the  requisite  number  of  votes.  The  court's  Jurisdiction  to 
make  the  order  of  election,  therefore,  attached,  and  if  it  be  conceded 
that  it  erred  in  the  exercise  of  its  jurisdiction,  the  errDrs~w6uM 
not  render  the  order  void.  But  as  the  discovery  of  errors  can  now 
be  of  no  benefit  to  the  appellants,  we  decline  to  follow  tliFargifflrenT 
of  counsel  for  the  purpose  of  detecting  them.     Affirmed. 

See  in  general  on  the  subject  of  discretion  exercised  in  granting  the 
writ — Rutland  v.  County  Com'rs,  20  Pick.  (Mass.)  71;  Lyman  v.  Town 
of  Burlington.  22  Vt.  131 ;  People  v.  Drain  Com'rs,  40  Mich.  745 ;  Fur- 
bush  V.  Cunningham,  56  Me.  184;  Duggen  v.  McGruder,  Walker  (Miss.) 
ri2;  Strobach,  Ex  parte,  49  Ala.  443;  People  v.  Hill,  53  N.  Y.  547; 
Ewing  V.  Thompson,  43  Pa.  St.  372;  State  v.  Blauvelt,  34  N.  J.  L.  261; 
Woodworth  v.  Gibbs,  61  Iowa  398;  People  v.  Trustees,  42  111.  App.  650; 
Pearce,  Ex  parte,  44  Ark.  509 ;  Welch  v.  County  Court,  29  W.  Va.  63 ; 
State   V.    Henderson,    160   Mo.    190;    McAIoon   v.    Pawtucket,   22   R.    I.    191. 

Even  though  the  relator  shows  that  he  has  no  other  adequate  remedy, 
the  court  may  still  exercise  .its  discretion  in  granting  or  refusing  the 
writ.     People  v.   Hill,  53   N.   Y.  547. 

See  especially  the  learned  note  on  the  subject  of  discretion  in  granting 
the  writ  in  12  Am.  Dec.  530.  Also,  Independent  Pub.  Co.  v.  American 
Press  Asso.,   102  Ala.  475. 


PEOPLE   EX  REL.   CITIZENS'   GAS   LIGHT   COMPANY   OF 

BROOKLYxX  V.  THE  BOARD  OF  ASSESSORS  OF 

THE  CITY  OF  BROOKLYN. 

1868.     Court  of  Appeals  of  New  York.     39  N.  Y.  81. 

(Appeal  from  an  order  of  the  supreme  court  quashing  a  writ 
of  certiorari  iliiiitid  ti-  respondents  t(^  review  a  .tax  alleged  to 
have  been    erruiieuu.sly    and    illegally    levied    again.st    the    relator.) 

(So  much  of  the  opinion  as  relates  to  the  legality  of  the  scheme 
and  method  of  taxing  corporations,  is  "tnittcd.) 

Mason,  J.—  *  *  *  The  only  reiiKLining_ question  is  whether 
the  supreme  court,  in  virtue  of  its  supervisory  power  over  inferior 
tribunals  by  means  of  the  common  law  writ  of  certiorari,  had  juris- 
diction, and  ought  in  plain  and  clear  duty  under  the  law  to  have 
corrected  this  error  of  these  assessors. 

It  is  claimed  and  insisted  by  the  defendant,  that  how  far  and 
in  what  cases  the  su])rcme  court  will  exercise  this  power  of  review 
are  questions  addressed  to  the  sound  discretion  of  that  court,  and 
as  that  court  have  quashed  the  writ  in  this  case  their  discretion 
cannot  be  reviewed  in  the  ccnirt.  I  cannot  assent  to  this  proposi- 
tion when  applied  to  a  case  like  the  present.  The  office  of  this  writ 
of  certiorari,  when  issued  out  of  the  supreme  court  to  review  the 


§    I  CERTIORARI,   IN   GENERAL.  59I 

proceedings  and  determination  of  inferior  tribunals,  has  fixed  limits 
that  may  be  regarded  as  settled  by  the  adjudged  cases  in  this  state, 
although  it  must  be  conceded  that  there  is  a  great  conflict  in  the 
decisions  when  we  get  beyond  a  certain  point  in  the  functions  of 
this  writ.  I  think  we  may  safely  say  that  the  following  rule  may 
be  deduced  from  adjudged  cases  in  this  state,  viz. :  That  its  office 
extends,  unquestionably,  to  the  review  of  all  questions  of  jurisdic- 
iion,  power  and  authority  of  the  inferior  tribunal  to  do  the  acts . 

"coffiplained  of,  and  all  questions  of  regularity  in  the  proceedings, 
that' is,  all  questions  whether  the  inferior  tribunal  has  kept  within 
the  boundaries  prescribed  for  it  by  the  express  terms  of  the  statute, 
law  or  by  well  settled  principles  of  common  law.  The  following 
cases  are  referred  to  as  fully  sustaining  these  propositions :  20 
Johns.  80;  6  Wend.  566;  10  id.  421;  15  id.  452;  8  Cow.  13,  16; 
7  id.  108,  136,  137;  17  Wend.  464;  20  id.  103;  2  Hill,  9,  11 ;  id. 
398 ;  6  How.  25  ;  6  Cow.  570 ;  2  Wend.  395 ;  5  id.  98 ;  32  Barb.  131  ; 
43  id.  232 ;  3  Seld.  152 ;  3  Kern.  223 ;  23  N.  Y.  192,  222 ;  26  id.  163. 
X-Cannot  assent  tfi  the  proposition,  that  when  the  supreme  court 
have  issued  the  writ,  heard  the  case  upon  the  return,  and  have 

'Committed  a  plain  error  in  law,  and  have  come  to  the  conclusion. 

-eFroneously,  as  in  this  case,  that  the  assessors  have  kept  within  the 

'Tx)undaries  prescribed  by  the  statutes ;  and,  therefore,  hold  that  the 
relators  can  take  nothing  by  the  writ,  and  give  judgment  quashing 
the  writ;  that  such  judgment  is  not  subject  to  review  in, this  court. 
The  judgment  of  the  supreme  court,  in  such  a  case,  is  not  rendered 
upon  the  ground,  that  the  proceedings  ought  not  to  be  reviewed 
by  the  writ,  or  that  it  was  improvidently  issued,  but  upon  the  ground 
that  the  allegations  of  error  have  not  been  sustained  in  the  given 
case.  Since  the  decision  of  the  several  suits  growing  out  of  the 
tax  assessments  in  the  city  of  Poughkeepsie,  there  is  no  redress  to 
the  citizen  against  illegal  assessments  like  this,  il.itj^,,not.  affordecT 
upon  this  common  law  writ  oi  certiorari,  which  it  certainly  can  be, 
so-far-asto  require  the  assessors  to  keep  wtttliirfTie'rures  oF  TawT^a^^ 
comply  with  terms  prescribed  by  statute.  The  judgment  of  the 
supreme  court  must  be  reversed,  and  judgment  given  for  the  re- 
lators, directing  and  requiring  that  the  sum  of  $291,128.26  b"^ 
stricken  out  of  the  capital  stock  in  said  assessment,  leaving  the 
assessment  to  stand  as  thus  corrected. 
■Judgment  reversed. 

See  also  People  v.  Board  of  Assessors,  39  N.  Y.  81 ;  People  v.  Com- 
missioners, 103  N.  Y.  370;  Farmington  &c.  Co.  v.  County  Com'rs,  112 
Mass.  206,  loc.  cit.  224;  Harris  v.  Barber,  129  U.  S.  366. 


592  BOARD    OF    SUPERVISORS    V.     MAGOON.  §     I 

6.     Effect  of  acquiescence,  laches,  or  delay  of  the  relator. 

BOARD  OF  SUPERVISORS  v.  MAGOON. 

1884.    Supreme  Court  of  Illinois.     109  111.  142. 

Mr.  Justice  Walker  delivered  the  opinion  of  the  court. 
Appellee  sued  out  a  common  law  writ  of  certiorari^  to  bring 
beToreThe  court  the  record  of  the  proceedings  of  the  road  commis- 
sioners of  Scoles  Mound  township,  in  Jo  Daviess  County,  and  of 
tliree  supervisors,  refusing  to  alter  a  road  in  that  township.  On" 
the  application  and  petition  for  its  alteration,  the  road  commissioners 
refiised  to  gfarirthe 'prayer  of  the  petition,  and  the  case  was  ap- 
pealed "to  "three  supervisors,  who,  after  hearing  the  evidence  for  and 
against,  on  a  protracted  trial,  lasting  a  number  of  days,  affirmed 
the  decision  of  the  road  commissioners,  and  to  vacate  and  quash 
these  proceedings  appellee  sued  out  this  writ.  On  a  hearing  in  the 
circuit  court  the  proceeding  was  quashed.  From  that  judgment 
an  appeal  was  prosecuted  to  the  appellate  court  of  the  Second  dis- 
trict, wTiich  affirmed  the  judgment  of  the  circuit  court,  ari(niie~case 
is  brought  to  this  court  by  appeal. 

The   scope   of  this   writ   is   quite   limited    at    common   law.     its 
operation  was  enlarged,  or  the  practice  regulated,  by  acts  of  parlia- 
ment never  in  force  in  this  state.     It  was  used  principally  in  crim- 
inal cases,  to  remove  them  from  inferior  tribunals  to  the  court  of 
king's  bench  for  trial.     The  writ  went,  as  a  matter  of  course,  on 
the   application  of  the   crown ;   but   when   made   by   defendant,   he 
was  required  to  show  cause.     It,  as  to  the  defendant,  or  a  private 
person  or  a  private  right,  was^lT^^f-a  writ  of  right.      (Trustees  of 
"^cliOOls  V.  School  Directors,  ^8  111.   100.)     Cause  must  be  shown 
by  the  petition,  or  it  will  not  be  granted,  or  if  it  is  granted,  it  must 
"bc^qn a ?;h cd . ~-fir was'al so  used'io  bring  before  the  court  of  king's 
'bench  the  record   of  coinmissioners  of  the  poor,  and  other  rates, 
and  in  cases  where  an  individual  was  sued  in  a  court  having  no 
jurisdiction,  and  no  appeal  or  writ  of  error  was  given  by  law,  or 
the  jurisdiction   had  been  exceeded,  or  it  appeared  that  the  pro- 
ceeding was  against  law.     The  proceedings  on  the  return  of  the 
record  were  confined  solely  to  the  record  of  the  lower  court  of  tri- 
bunal, unless  it  were  in  crimnal  cases  removed  to  the  king's  bench, 
for  trial ;  as  other  criminal  cases  instituted,  to  be  tried  at  nisi  prius. 
The  purpose   of  the   writ,   was   in   all    cases,   to   prevent   injustice. 
I'lxcept  in  criminal  cases  it  was  only  .illdwed  where  there  was  no 
appeal  or  writ  of  error,  and  where  llure  was  a  wrong  or  injury 
that  could  not  be  otherwise  corrected,     it  was  used  to  prevent  irrep- 
arable  wrong   or    injiirv.      Unless   the    writ    was   asked    in   a   case 


§    I  CERTIORARI,    IX   GENERAL.  593 

involving  a  private  matter,  it  was  required  to  be  sought  by  the 
attorney  for  the  crown,  or  the  prosecutor.  In  matters  in  which 
the  rights  of  the  pubHc  were  concerned,  the  writ  was  alone  pros- 
ecuted by  the  representative  of  the  public.  But  whether  it  shall, 
or  not,  be  granted,  is  largely  a  matter  of  discretion.  The  doctrine 
so  announced  in  Hyslop  v.  Finch,  99  111.  171,  and  the  same 
doctrine  was  recognized  in  Trustees  of  Schools  v.  School  Directors, 
88  111.  100,  and  they  announce  that  this  discretion  is  not  an  arbitrary 
exercise  of  judicial  power,  but  is  one  that  is  subject  to  review. 
If  the  discretion  has  been  improvidently  exercised  in  issuing  the 
writ,  the  error  will  be  corrected  on  appeal. 

If  not  the  prime  mover  in  this  proceeding,  appellee  was  one  of 
its  promoters.  He  signed  the  petition  and  seems  to  have  been 
active  in  pressing  its  allowance,  and,  he,  at  every  step  in  the  pro- 
ceeding which  was  to  alter  a  road  running  over  his  land,  as  we 
understand  the  record,  pressed  the  petition  precisely  as  though 
every  step  was  regular  and  in  exact  conformity,  in  every  particular, 
with  the  requirements  of  the  statute.  He  was  pressing  the  petition, 
and  if  there  was  any  material  requirement  omitted,  he  must  then 
have  known  it,  and  should  have  had  it  corrected  before  proceeding 
further.  He  had  no  right  to  trifle  with  the  process  of  the  law, 
to  speculate  on  the  chances  of  a  favorable  result,  and  when  it 
proved  adverse,  then  to  turn  and  claim  what  he  did  was  illegal  and 
void.  To  permit  him  so  to  act  would  render  such  proceedings 
vexatious  and  expensive  to  no  beneficial  purpose.  Although  a  person 
who  took  no  part  in  the  proceeding,  or  a  person  opposing  a  pro- 
ceeding of  this  character,  might  question  the  correctness  of  every 
material  step  taken,  we  think  the  appellee  is  precluded  from  saying 
that  what  he  did  was  not  legal,  after  having  urged  all  of  his  acts, 
or  from  saying  those  he  caused  to  be  performed  are  illegal  and 
void.  He  assisted  in  the  inauguration  of  the  proceeding,  and  acted 
upon  Avhat  he  and  others  did  as  though  in  conformity  to  law,  and  he 
must  be  bound  by  such  acts. 

As  to  the  objection  that  the  highway  commissioners  are  not 
shown  by  the  record  to  have  posted  the  notices  required,  of  the  time 
set  for  hearing,  the  record  of  the  town  clerk  recites  that  the  notice 
was  given,  and  names  the  places  where  they  were  posted.  By 
appearing  and  proceeding  to  a  hearing  appellee  admitted  there  was 
notice,  and  he  is  estopped  to  afterwards  deny  it  Whether  or 
not  there  was  proper  noticQ,  lie  waived  that  by  appearmg~and  pro- 
Tiding  with  his  application.  He  had  sufficient  notice  to  enable 
llim  to  appear  and  be  heard,  and  he  was  not  injured  for  want  of 
notice.  Whether  others  not  appearing  and  participating  in  the 
proceeding  are  estopped,  is  a  question  not  before  us  for  decision. 
The  commissioners  recite,  in  the  order  entered  at  the  hearing,  that 
they  met  at  the  time  and  place  mentioned  in  the  notice,  and  that 


594  BOARD    OF    SUPERVISORS    V.    MAGOON.  §    I 

is  evidence  that  notice  was  given.  (See  Wells  v.  Hicks,  27  111.  345; 
Frizell  v.  Rogers,  82  id.  log.)  We  are  clearly  of  opinion  the  record 
shows  that  the  highway  commissioners  had  jurisdiction. 

It  is  urged  that  the  notice  was  not  given  of  the  time  and  place 
of  hearing  the  appeal,  as  required  by  the  statute.  _jL.i.s  .a  .£ufficient_ 
answer  to  this  objection  to  say  that  appellee  appeared  at  the  time,' 
and  moved  for  and  obtained  a  continuance  of  the  time  for  hearing 
the   appeal,   and   on   the   day   to   which    it   was   continued   he   and 
the  other  parties  appeared,  and  the  hearing  was  entered  upon  and 
continued  until  the  final  result  was  reached.    He  is  .thereby  estopped 
from  urging  there  was  not  a  sufficient  notice  given  of  the  appeal. ' 
Anderson  v.  Wood,  80  111.  16.  is  decisive  of  this  question. 

It  is  urged  that  the  record  fails  to  show  that  proclamation  was 
made  or  notice  given  of  the  continuance  of  the  hearing  from  the 
13th  to  the  29th  of  March.  We  fail  to  find  any  such  requirement 
of  the  statute.  All  parties  having  an  interest  in  the  matter  are" 
presumed  to  be  present,  and  to  take  notice  of  the  adjournments 
of  the  supervisors.  Appellee  had  notice,  and  appeared  on  the  29th, 
and  has  no  right  to  complain.     He  was  deprived  of  no  right. 

It  is  urged  that  the  supervisors  did  not  announce  their  decision 
wHelher  they  would  grant  or  refuse  the  prayer  of  the  petition, 
within  twenty  days  of  their  first  meeting.  Appellee  himself,  at 
the  first  meeting,  procured  a  continuance  for  sixteen  days,  and  he 
was  heard  by  counsel  and  witnesses  which  occupied  the  time  of 
the  supervisors,  and  as  he  produced  the  delay  by  procuring  a  con- 
tinuance of  his  own  case,  he  surely  should  not  be  heard  to  corn- 
plain.  The  only  limitation  on  the  time  when  the  appeal  shall  be 
heard,  seems,  by  the  99th  section  of  chapter  121,  to  be,  that  the 
person  appealing  shall  give  notice  of  the  appeal,  to  the  highway 
commissioners,  and  to  at  least  three  of  the  petitioners,  and  also 
to  the  same  parties  a  notice  where  and  when  such  appeal  will  be 
tried,  at  least  three  days  before  such  trial,  within  ten  days  after 
such  decision  has  been  filed  in  the  office  of  the  proper  clerk.  The 
looth  section  provides  that  the  supervisors  shall  fix  upon  a  time 
and  place  when  such  appeal  shall  be  heard  by  them.  The  99th 
section  requires  that  notice  of  such  time  and  place  shall  be  given 
within  ten  days  after  the  decision  of  the  highway  commissioners 
sliall  be  filed  with  the  town  clerk.  That  section  also  provides  that 
upon  such  appeal  the  supervisors  shall  have  the  same  power  and 
authority  as  is  conferred  on  the  commissioners  of  highways,  not 
only  in  regard  to  the  laying  out,  altering,  widening  or  vacating  any 
road,  Init  shall  have  the  same  power  to  cause  a  jury  to  be  sum- 
moned to  assess  damages,  etc.  It  will  be  observed  that  while  this 
section  confers  the  .same  power,  it  does  not  limit  its  exercise  to  the 
manner  prescribed  in  previous  sections  as  to  its  exercise  by  tho 
highway  commissioners.     iUit  there  is  no  provision  relating  to  th  * 


§    I  CERTIORARI,  IN  GENERAL.  595 

action  of  the  supervisors,  in  trying  the  appeal,  prescribing  the  time 
in  which  the  decision  shall  be  reached  and  announced.  In  that 
regard  there  is  no  limitation  as  to  the  time  when  the  decision  shall 
tJe  made  and  announced.  The  loist  section  simply  provides  that 
tHey  shall  make  a  report  of  their  proceedings  and  decision  in  like 
manner  as  is  required  of  the  commissioners.  The  72d  and  73d  sec- 
tions provide  for  the  manner  in  which  the  commissioners  shall  pro- 
ceed to  try  the  petition.  The  latter  of  these  sections  requires  the 
commissioners  to  indorse  on  or  annex  to  the  petition  a  brief  mem- 
UTandurh  of  their  decision,  which  shall  be  signed  by  the  commis- 
sioners, and  filed  in  the  office  of  the  town  clerk,  so  indorsed  or 
annexed,  within  ten  days  after  it  shall  be  made.  The  report  of  the 
supervisors  complied  strictly  with  this  requirement,,  and  it  must 
be  held  sufficient. 

A~"careful  consideration  of  the  record  satisfies  us  that  there  is 
no  error  of  which  appellee  can  complain.  The  circuit  court  should 
have  quashed  the  writ  and  dismissed  the  proceeding.  The  appel- 
late court  erred  in  affirming  the  judgment  of  the  circuit  court,  and 
the  judgment  of  the  appellate  court  is  reversed  and  the  cause  re- 
manded. 

Judgment  reversed. 


WHITEHEAD  v.  GRAY  et  al. 
1830.     Supreme  Court  of  New  Jersey.     12  N.  J.  L.  36. 

Opinion  of  Chief  Justice : 

Controversies  having  arisen  between  Thomas  J.  Whitehead,  op 
the  one  part",  and  Geo.  W.  Gray,  and  Samuel  H.  Gedney,  of  the 
other  part,  they  agreed,  by  an  instrument  of  writing,  to  submijt 
"aTT  matters'  in  difference  belr^veen  them."  to  the  arbitrament  of  three 
persons  nmtually  selected.  The  arbitrators  made  an  award.  White- 
head being  dissatisfied,  sued  out  a  writ  of  certiorari  directed  to 
them,"  requiring  them  to  certify  to  this  court,  the  "submission  and 
award,  and  all  things  touchmg  and  concerning  the  same."  The 
arbitrators  have  made  return  and  send,  "the  submission  and  one 
of  the  awards,  the  other  award  (both  being  alike),  having  been 
delivered  to  Geo.  W.  Gray  and  Samuel  H.  Gedney,  before  receiving 
the  writ."  The  exceptions  to  the  award,  as  stated  by  the  plaintiff 
in  certiorari,  in  the  reasons  "filed,-  are,  that  the  arbitrators  did  not 
act;  altRoYigh  requested,  on  certain  matters  contained  within  the 
sitbmtssioir ;  and  that  they  did  act  on  matters,  not  within  the  sub- 
mission, andbevoiid  their  powers. 


596  WHITEHEAD   V,    GRAY   ET   AL.  §    I 

The  case  is  submitted  to  us  on  the  return  to  the  certiorari  and 
depositions  since  taken,  and  a  written  argument  of  the  plaintiff's 
counsel,  no  counsel  having  appeared  on  the  other  part. 

The  question  which  presents  itself  for  examination,  is,  whether 
this  court  has  jurisdiction  to  issue  such  a  writ,  and  thus' to  Inquire 
into  the  proceedings  of  the  arbitrators?  Whether  a  certiorari  di-' 
rected  to  arbitrators  who  have  made  and  published  their  award  for 
the  purpose  of  impeaching  and  setting  aside  the  award,  can  on  legal 
principles  be  maintained?  The  allocatur  was  signed  by  the  judge, 
of  whom  it  was  asked,  with  hesitation,  from  a  desire,  however,  not 
to  deprive  the  complainant  of  the  remedy,  if  lawful,  and  under  an 
expectation,  the  propriety  of  it  would  be  examined  here  before  the 
whole  court,  where  it  might  be  more  satisfactorily  decided. 

There  is  no  precedent  of  such  a  certiorari,  in  this  court ;  in  the 
other  states  of  the  union ;  or  in  the  English  reports,  so  far  as  I 
am  able  to  learn,  either  from  my  own  researches  or  from  the  brief 
of  the  plaintiff's  counsel.  Hence  a  very  cogent  and  almost  irresist- 
ible argument  results  against  the  present  employment  of  this  writ. 
So  frequent  here  and  elsewhere  are  arbitrations ;  so  numerous  are 
awards ;  so  invariably  is  the  losing  party  dissatisfied,  so  frequently 
are  the  very  complaints  made  which  are  here  urged ;  so  usual  is  it 
for  the  unsuccessful  litigant  to  suppose,  and  oftentimes  most  sin- 
cerely, that  the  arbitrators  have  done  too  little  for  him  and  too  much 
against  him;  and  the  common  modes  of  redress  against  awards  are 
deemed  so  arduous  and  straitened,  that  we  may  presume,  if  not 
conclude,  the  om.ission  to  use  the  writ  of  certiorari,  is  from  the  con- 
viction of  the  profession,  that  it  cannot  lawfully  be  done.  In  the 
King  V.  Whitbread.  Doug.  549,  Lord  Mansfield  said :  "Though 
great  industry  has  been  emi)loyed,  no  case  has  been  ])roduced,  in 
which  a  certiorari  has  been  granted  to  remove  proceedings  before 
the  commissioners  of  excise.  This  circumstance  alone  affords  strong 
ground  to  suspect  that  none  is  grantable."  Industry  equally  great 
and  commendable  has  been  used  here  by  the  i)laintiff's  counsel,  and 
with  a  like  unsuccessful  result.  I  am  not  willing,  however,  on  this 
argument  alDuc,  to  deny  the  writ,  but  choose  to  seek  otherwise  to 
ascertain  the  bounds  of  our  jurisdiction. 

One  ground  relied  ui)on  by  the  plaintiff  in  support  of  the  writ 
is,  that  as  the  submission  contains  no  agreement  for  making  it  a  rule 
of  the  court,  and  as  there  is  no  allegation  of  corrupt  conduct  of 
the  arbitrators,  he  has  no  other  remedy  in  a  court  of  equity  or  in  a 
court  of  law.  "The  only  remedy  he  can  adopt,  so  as  to  embrace 
all  of  the  objections  to  the  award,"  he  says,  "is  by  certiorari." 

It  is  true,  as  the  submission  may  not,  for  want  of  an  agreement 
of  the  parlies,  be  made  a  rule  of  court,  the  complainant  cannot  seek 
rerlress  in  the  same  mode  as  if  there  had  been  such  an  agreement. 
And  if  he  cannot,  let  it  be  renicinl)crc(l  lie  h;is  voluntarilv  deprived 


?     I  CERTIORARI,    IN    GENERAL.  597 

himself  of  it.  Such  a  clause  is  very  commonly  inserted;  and  he 
was  wholly  at  liberty  to  accede  to  or  refuse  an  arbitration  under 
this  or  any  other  form.  This  mode  of  adjusting  diiTerences  is 
never  by  compulsion  or  in  invitiim.  If  the  award  remains  unper- 
formed by  Whitehead,  Gray  and  Gedney  must  resort  to  an  action 
on  the  submission  or  the  award.  In  such  action,  Whitehead  may 
avail  himself  of  certain  exceptions  against  the  award,  and  for 
others,  the  court  of  equity  opens  its  doors  to  him.  By  way  of  de- 
fense in  such  action  or  by  bill  in  chancery,  he  may  urge  against 
the  award  all  such  objections  as  can,  on  legal  principles,  be 
sustained.  Whether  he  can,  in  either  place,  enforce  the  complaints, 
he  here  makes,  we  need  not  determine.  If  he  may,  he  has  other 
remedy  and  is  not  permitted  to  invoke  the  extraordinary  jurisdic- 
tion of  this  court  by  certiorari.  If  he  may  not,  the  law  has  not 
provided  him  redress  upon  such  grounds  or  does  not  consider  them 
sufficient  as  to  impeach  an  award ;  a  mode  of  adjusting  contro- 
versies to  which  it  compels  no  one  to  resort,  and  upon  which  before 
any  one  enters,  he  should  weigh  the  maxim,  Qui  sentit,  couimodnin 
sentire  debet  et  onus. 

The  jurisdiction  of  this  court,  by  means  of  the  writ  of  certiorari, 
is,  in  my  opinion,  correctly  and  perspicuously  laid  down  in  Ludlow 
V.  Executors  of  Ludlow,  i  South.  389.  "It  has^  the  superintendence 
of  all  inferior  courts  both  civil  and  criminal ;  of  all  corporations 
in  The  exercise  of  their  corporate  powers ;  and  of  all  public  com- 
missi^oners  in  the  execution..Qf  their  special  authorities  and  public 
trusts.  Tfcauses  their  proceedings  to  be  certified  before  it,  in  order 
that,  upon  inspection,  they  may  be  stayed,  affirmed  or  set  aside,  as 
the  case  may  require ;  and  that  in  many  cases  before,  as  well  as  after 
jiKlgment," 

The  counsel  of  the  plaintiff  seeks  to  give,  as  it  seems  to  me,  an 
undue  extension,  unintended  by  the  court,  to  a  subsequent  clause 
of  the  opinion  above  referred  to,  page  392,  when  he  states  in  his 
brief  that  the  certiorari  is  thereby  said  to  lie  to  "all  tribunals  which 
are  called  extraordinary  and  special,  in  contradistinction  to  the 
ordinary  and  common  courts."  The  context  fully  shows  that  the 
court  here  meant  no  wider  range  than  had  been  previously  expressed. 
They  speak  of  the  use  of  the  writ,  "in  superintending  inferior  juris- 
dictions in  the  exercise  of  public  powers  and  authorities,  in  which 
the  people  at  large  are  concerned.''  They  specify  them.  "Of  this 
kind  of  jurisdiction  are  all  tribunals  established  by  law,  for  the 
execution  of  particular  public  trusts,  such  as  boards  of  freeholders," 
"commissioners  appointed  to  lay  out  roads  and  others,"  and  then 
add,_  "in  short,  all  tribunals  which  are  called  extraordinary  and 
special,  in  contradistinction  to  the  ordinary  and  common  courts 
established  for  the  trial  of  criminal  offenses,  and  the  determina- 
tion of  private  right  between  citizen  and  citizen."     The  next  sen- 


598  WHITEHEAD   V.    GRAY    ET   AL.  §    I 

tence  also  clearly  evinces  their  meaning.  "The  staying  or  super- 
seding the  proceedings  of  these  public  functionaries  in  the  execu- 
tion of  their  trusts.  " 

Let  us  now  examine  the  authorities,  on  the  head  of  jurisdiction 
to  which  we  are  referred  by  the  plaintiff's  brief.  They  consist 
of  general  rules  and  particular  instances  of  the  exercise  of  the  writ. 
Thus  we  are  referred  to  Bac.  Abr.  Cert.  B.  351,  where  the  author 
says  "the  writ  lies  to  remove  the  proceedings  from  an  inferior 
court,  whether  of  an  ancient  or  newly  created  jurisdiction,  unless 
exempted  by  statute  or  charter."  But  arbitrators  were  not  here 
intended  nor  can  they  by  any  just  construction  be  included.  The 
s.Tme  may  be  said  of  the  doctrine  laid  down  in  another  place. 
"It  is  a  consequence.  D-L all. inferior  jurisdictions  erected  by  parlia- 
fnenl  Il>  liave  their  proceedings  returnable  into  K.  B."  Arbitrators 
are  not  what  is  here  meant  by  inferior  jurisdictions.  In  Rex  v. 
Inhabitants  of  Glamorgan,  i  Ld.  Raym.  580,  the  court  recognized 
a  distinction  between  an  authority  and  a  jurisdiction;  for  it  being 
objected  that  this  writ  would  not  lie  to  remove  orders  made  by 
commissioners  of  bankrupts,  the  court  said  they  had  only  an  au- 
thority, and  not  a  jurisdiction.  The  citation  made  from  i  Lilley 
Abr.  253,  is  one  of  those  general  remarks  which  can  only  be 
understood  by  its  specifications,  and  can  only  be  true  with  its 
proper  qualifications.  If  broadly,  the  writ,  "lies  in  all  cases  where 
the  superior  tribunal  can  administer  the  same  justice  as  the  court 
below,  and  when  the  inferior  jurisdictions  do  not  proceed  therein 
according  to  the  rules  of  law,"  it  is  manifest  this  court  may  be 
compelled  to  assume  most  of  the  judicial  business  of  the  state. 
Can  we  not  administer  in  all  civil  actions,  in  point  of  jurisdiction 
at  least,  the  same  justice  as  the  courts  of  common  pleas? 

The  plaintiff's  counsel  has  cited  Cases  Temp.  Hardwicke  261, 
to  show  that  when  an  act  of  parliament  directs  something  to  be 
done,  the  court  will  enforce  it  by  mandamus ;  and  3  Smith  388, 
E.  T.  1806,  that  arbitrators  are  subject  to  an  order  of  K.  B. 
in  England,  under  a  mandannis,  for  not  coming  to  an  agree- 
ment. And  he  argues  that  if  incorrectly  done,  the  court  will  cor- 
rect the  matter  by  certiorari  in  all  cases  where  by  mandamus  they 
would  order  it  to  be  done.  This  deduction  is  not  sound.  In  Rex 
V.  Cla])ham,  i  Wills.  305,  a  mandamus  was  issued  to  the  old 
uvcrsLcrs  of  the  poor  to  deliver  the  books  of  the  poor's  rates,  to 
the  new  overseers.  In  3  l^urr.  1264.  to  the  trustees  of  a  dissenting 
meeting  house  to  admit  a  i)erson  duly  elected,  to  the  use  of  the 
pulpit.  If  the  books  had  been  imi)roi)cr]y  delivered  in  the  one 
case,  or  the  pulpit  im])roperly  opened  in  the  other,  no  certiorari 
would  have  been  granted.  In  Marbury  v.  Madison,  i  Cranch  170, 
'.he  Suy)rcrnc  Court  r)f  the  Ignited  States  thought  a  mandamus  to 
the   secretary   of   state    to   deliver   a    commission    or   a    co])y   of   it 


§    I  CERTIORARI,   I\   GENERAL.  599 

from  the  record,  was  a  proper  remedy,  although  being  an  exercise 
of  original  jurisdiction  not  warranted  by  the  constitution,  they  did 
not  issue  it.  But  if  the  commission  had  been  improperly  delivered, 
by  the  secretary,  can  it  be  supposed  they  would  have  deemed  a 
certiorari  an  apt  remedy  to  correct  such  error? 

We  are  also  referred  to  particular  cases  for  the  exercise  of  the  writ 
of  certiorari.  Groenvelt  v.  Burwell,  i  Salk.  144.  The  writ  was 
to  the  censor  of  the  College  of  Physicians  to  whom  a  power  was 
given  by  charter,  to  examine  and  punish  in  cases  of  malpractice 
and  who  had  condemned  Groenvelt  to  fine  and  imprisonment.  In  3 
Mod.  94,  95,  (Rex  V.  Plowright)  it  was  held  a  certiorari  would  lie 
to  remove  an  order  of  two  justices  to  set  aside  a  distress  by  the 
collector  of  the  tax  on  chimneys,  made  under  an  act  of  parlia- 
ment, giving  to  one  or  more  justices  authority  to  hear  and  deter- 
mine in  case  of  dispute.  Cro.  Jac.  484,  Carew's  case  and  Poph. 
144,  were  applications  for  ccrtioraries  to  remove  indictments  from 
Wales.  In  i  Keble  818,  Bucknel's  case,  a  certiorari  was  applied 
for  to  remove  informations  for  offences  and  to  enforce  penalties, 
exhibited  before  commissioners  of  excise ;  moreover  it  was  not 
granted.  In  2  Keble  43,  a  certiorari  was  issued  to  remove  the 
proceedings  of  the  commissioners  of  fens.  What  they  were,  or 
what  was  the  objection  to  them,  is  not  stated.  But  in  the  same  book, 
82,  Bell  V.  Partridge,  the  court  denied  a  certiorari  to  the  commis- 
sioners under  the  act  for  draining  the  Bedford  Level,  and  said 
it  was  like  the  commissioners  of  bankrupts,  in  which  case,  if  they 
decree  contrary  to  law,  the  party  has  his  remedy  by  action.  2 
Keble  129,  was  a  certiorari  to  the  commissioners  of  sewers,  who 
had  very  extensive  powers  to  erect  public  works  and  make  assess- 
ments for  their  expenses ;  and  the  object,  in  this  instance,  was, 
to  remove  an  order  they  had  made,  charging  one  day  alone  for 
the  repair  of  a  sea  wall. 

It  may  have  been  seen,  that  all  these  instances  of  the  allow- 
ance of  the  writ,  are  strictly  within  the  rule  laid  down  by  this 
court;  nor  does  any  one  bear  even  a  remote  analogy  to  the  case 
now  before  us. 

The  rule  in  Ludlow,  v.  Executors  of  Ludlow,  is  substantially  the 
same  as  that  stated  by  the  Supreme  Court  of  New  York,  in  Lawton 
V.  Commissioners  of  Cambridge,  2  Caines  179;  and  subsequently 
recognized  in  Lynde  v.  Noble,  20  John.  82,  and  Le  Roy  v.  Mayor, 
etc.,  of  New  York,  20  John.  438.  "The  King's  Bench  in  England 
(and  this  court  is  clothed  with  the  same  common  law  authority), 
has  jurisdiction  and  may  award  a  certiorari  not  only  to  inferior 
courts,  but  to  persons  invested  by  the  legislature  with  power  to 
decide  on  the  property,  or  the  rights  of  the  citizen  even  in  cases 
where  they  are  authorized  by  statute,  finally  to  hear  and  deter- 
mine."    Arbitrators  are  not  meant  by   "persons   invested  by  the 


600  PEOPLE    V.    BOARD   OF    POLICE    COMMISSIONERS.  §    I 

legislature  with  power  to  decide."  Nor  do  the  differences  pointed 
otir-ta^t!s^15et\veeii  ■a'rbitrators  here  and  in  England,  growing  out 
of  our  statute,  which  requires  them  to  be  sworn  or  affirmed,  and 
authorizes  them  to  administer  oaths  or  affirmations  to  witnesses, 
render  them  any  more  a  tribunal,  or  jurisdiction,  or  inferior  court, 
within  the  scope  of  a  writ  of  certiorari,  than  arbitrators  in  England. 
Some  provisions  designed  to  render  this  mode  of  adjusting  dis- 
putes more  safe,  efficient  and  practically  useful,  are  peculiar  to 
our  statute,  but  the  leading  principles  of  arbitration  remain  un- 
changed. 

An  argument  of  some  weight  against  awarding  this  writ  to 
arbitrators,  is,  that  they  are  not  boimd  to  make  or  keep  any  record* 
or  minute  of  their  proceedings ;  their  award  when  made,  is  usually 
delivered  to  one  or  both  of  the  parties ;  their  functions  are  then 
executed  and  at  an  end.  How  is  a  return  to  the  writ  to  be 'effected? 
Ts  the  use  of  the  writ  to  depend  on  the  chance  that  the  arbitrators 
may  not  have  parted  with  the  award  ?  Is  not  the  propriety  of  the 
writ  justly  questionable,  when  those  to  whom  it  is  to  be  directed, 
at  all  times  may  be  able  to  say,  and  in  general  must  say,  they 
have  nothing  remaining  before  them? 

The  jyrit  of  certiorari  was,  in  this  case,  in  my  opinion,  im- 
providently  issued,  and  ought  to  be  quashed. 

See  also  State  v.  Judge,  33  La.  Ann.  15 ;  Wallace  v.  Jameson,  179  Pa. 
St.  94;  Lantis,  In  re,  9  INIich.  324;  Hatter  v.  Eastland,  22  Ala.  688;  Hagar 
V.  Board  &c.,  47  Cal.  222;  IHingworth  v.  Rich,  58  N.  J.  L.  507;  Rober- 
son   V.   Bayonne,   58   N.   J.   L.   325. 


PEOPLE  EX  REL.  WALDMAN  v.  BOARD  OF  POLICE 
COMMISSIONERS  et  al. 

1880.     Court  of  Appeals  of  New  York.     82  N.  Y.  506. 

Appeal  from  order  of  the  general  term  of  the  supreme  court, 
in  the  first  judicial  department,  affirming  an  order  of  s])ecial  term, 
which  quashed  a  writ  of  certiorari,  on  hearing  uj^on  ^  return  to  the 
writ. 

The  wjrtwas  obtained  to  review  the  proceedings  of  Jhe  board 
oPpoTTce  con)niissioncfs"ol~ the  city  of  New  "S^nrk.  removing  the 
relator  from  the  position  of  clerk  in  the  police  departnienE 

The  relator  was  removed  April  i,  1876;  he  applied  for  the  writ 
March  i,  1878. 

DANFORTir,  J. — The  order  made  b}'  the  special  term  was  that 
thf  writ  Ix'  quashed,  and  it  was  intimated  \\\)on  the  argument  that 
under  the  practice  of  this  court  in  such  cases  the  appeal  must  be 


§    I  CERTIORARI,   IN   GENERAL.  6oi 

dismissed,  but  at  request  of  the  appellant's  counsel  the  case  was 
held,  to  enable  him  to  hand  up  points  and  authorities  to  the  con- 
trary. We  are  still  of  the  opinion  that  this  trouble  might  have 
been  spared.  It  had  been  frequently  decided  that  the  supreme 
court  has  a  discretionary  power  to  grant  or  withhold  a  common 
law  certiorari.  {In  re  Mt.  Morris  Square,  2  Hill  28;  People  ex 
rel.  Vanderbilt  v.  Stilwell,  19  N.  Y.  531 ;  People  ex  rel.  Davis  v. 
Hill,  53  id.  S4r7 ;  People  ex  rel.  Hudson  v.  Board  of  Fire  Commis- 
sioners, yy  id.  605.)  In  these  (and  many  other  cases  to  the  same 
effect  might  be  cited),  it  was  held  that  unreasonable  delay  in 
applying  for  the  writ  might  be  a  ground  for  refusing  it,  and  for 
quashing  it  even  after  a  hearing  on  a  return  thereto.  We  cannot 
distinguish  this  case  from  those  cited. 

The  relatOF-was  removed  from  office  April  i,  1876.  The  writ  of, 
c??ff5fanwas  applied  for  March  1,  1878.  This  delay  might  be 
cTTTiStiJefea' unreasonable,  and  as  amounting  to  acquiescence  in  the 
Scrrfcn'oT'lHe' department.  5y,c.h.  a  question  was  not  presented 
nTTHe  Peopr^>.r >c7.  The  Citizen'rt^arrSTvrTte  Board  of  Asses- 
soT'57~t39"!sr.  "Y.  81)  ;  the  facts  in  that  case  are  palpably  unlike 
^those  now .  before  us,  and  the  learned  judge  who  there  delivered 
the  opinion  seems  to  have  regarded  it  as  an  exception  to  the  rule. 
In  Stilwell's  case,  (19  N.  Y.  531),  a  distinction  is  suggested  upon 
which  an  appeal  might  lie,  but  it  does  not  avail  the  appellant,  for 
in  the  case  before  us  the  supreme  court  neither  annulled  nor  affirmed 
the  proceedings  complained  of ;  nor  does  the  language  of  the 
new  code,  to  which  we  are  referred  (§  190,  subds.  2  &  3)  diflfer  in 
meaning  from  that  of  the  old  (§  11)  which  was  in  force  when  the 
cases  above  referred  to  were  decided. 

We  think  the  appeal  should  be  dismissed. 

All  concur. 

Appeal  dismissed. 

See  also  Keys  v.  Board  &c.,  42  Cal.  253 ;  Trustees  &c.  v.  School  Directors, 
10  Chicago  Leg.  News  380;  Dve  v.  Noel,  85  Til.  290;  People  v.  Citv  of 
Brooklyn,  8  Hun  (N.  Y.)  56:'Lantis,  In  re,  9  Mich.  324;  State  v.  Mil- 
waukee Co.,  58  Wis.  4;  Long  v.  Ohio  River  R.  Co.  35  W.  Va.  333;  People 
V.  Hill,  .53  N.  Y.  547;  State  v.  Jersey  City,  35  N.  J.  L.  381:  Tucker. 
Petition   of,   27   N.   H.  405,  410;    Stedman  v.   Bradford,   3   Phila.    (Pa.)    258. 

Where,  however,  the  order  of  the  court  below  is  wholly  in  excess  of 
its  jurisdiction,  the  delay  of  the  relator  in  applying  for  certiorari  affords 
no  reason  for  allowing  such  order  to  stand  and  refusing  the  writ. 
Boston  &c  R.  Co.  v.  County  Com'rs,  116  Mass.  73.  See  also  Graver  v. 
Fehr,  89  Pa.  St.  460;  Overseers  v.  Overseers,  26  N.  j.  L.  210. 

What  shall  constitute  a  "reasonable  time"  witliin  which  relator  must 
apply  for  the  writ  or  be  barred  by  his  laches,  is  a  question  for  the 
judicial  discretion  of  the  court  and  will  be  governed  almost  wholly  by 
the  facts  of  the  individual  case.  People  v.  Perry,  16  Hun  (N.  Y.)  461; 
State  v.   City  of  Paterson,  39  N.  J.  L.  489,  493. 


602  FRANKLIN    ACADEMY    V.     HALL,    ETC.  §    I 

7.     As  an  auxiliary  remedy. 

FRANKLIN  ACADEMY  v.  HALL,  etc. 
1855.     Court  of  Appeals  of  Kentucky.     16  B.   Men.  472. 

(So  MUCH  of  the  opinion  as  relates  to  the  legality  of  possession 
under  the  various  land  patents  involved  in   the  case   is  omitted.) 

AL\kshall,  C.  T. —  ""  *  *  The  defendant,  John  Garrett,  ex- 
hibited a  patent  to  himself,  dated  in  1839,  for  two  hundred  and 
fifty  acres,  lying  wholly  within  the  boundary  of  the  elder  patent 
as  claimed,  and  proved  that  he  had  been  in  possession,  and  lived 
within  the  boundaries  of  his  patent  for  (as  the  copy  of  the  bill 
of  exceptions  in  the  transcript  states)  two  years  past — that  is 
preceding  the  trial,  which  was  on  the  29th  day  of  April,  185 1. 
But  two  years  last  past  would  not  reach  back  to  the  time  when 
the  notice  in  this  action  was  served  on  Garrett.  If  the  proof  as  to 
Garrett's  possession  be  truly  stated  in  the  transcript,  he  had  no 
pretext  for  claiming  protection  on  the  ground  of  length  of  posses- 
sion; but  the  court  gave  an  instruction  with  reference  to  the  case, 
which  authorized  the  jury  to  find  for  him  on  the  ground  of  actual 
settlement  and  residence  within  his  patent  for  more  than  seven  years 
before  the  commencement  of  the  action.  This,  upon  the  proof  as 
stated  in  the  record,  would  have  been  so  palpably  without  founda- 
tion or  authority  in  the  evidence,  that  looking  to  the  date  of  Gar- 
rett's patent,  more  than  eleven  years  before  the  trial,  and  considering 
the  fact  that  a  possession  of  two  years  before  the  trial  would  not 
include  the  commencement  of  the  suit,  and  could  not  have  con- 
stituted even  a  supposed  bar  to  the  action,  we  think  there  is,  in  all 
])robability,  a  mistake  in  copying  the  bill  of  exceptions,  into  the 
transcript,  and  as  we  know  that  the  words  ten  and  tivo  are  often  so 
written  that  it  is  dilTicult  to  determine  which  was  intended,  we  may 
conjecture  that  the  ])r()of  was  that  Garrett  had  been  living  there 
within  his  i)atent  for  ten  instead  of  two  years,  and  that  it  was 
so  stated,  or  intended  to  be  so  stated,  in  the  original  bill  of  excep- 
tions. If  this  be  so  the  instruction  had  a  sufficient  basis  in  the 
evidence  with  respect  to  Garrett's  case  as  well  as  the  others,  and 
as  there  woidd  have  been  no  error  in  giving  or  refusing  the  instruc- 
tions, the  judgment  would  be  affirmed  ;  but  as  we  cannot,  upon  this 
conjecture,  however  probal)le,  affirm  a  judgment  which,  as  the  record 
stands,  is  obviously  and  substantially  erroneous,  we  suspend  the  de- 
termination of  the  case  in  this  court  until  the  return  of  a  certiorari, 
which,  as  the  affirmance  of  the  judgment  depends  upon  it,  the  court 
orders,  ex  viero  iiiotii.  for  the  purpose  of  ascertaining  with  more 
certainty  than  at  present.  I  lie  true  state  of  the  evidence  with  regard 
to  r.;iti,n\  possession  witliiii  liis  patent. 


§     I  CliKTIOKARI,    IN    GENERAL.  603 

Wherefore  it  is  ordered  that  a  certiorari  be  issued  from  this 
court  to  the  clerk  of  Caldwell  county,  requiring  him  to  certify 
a  true  copy  of  that  part  of  the  bill  of  exceptions  in  this  case  which 
follows  immediately  after  the  statement  of  the  reading  of  Garrett's 
patent,  and  states  the  proof  made  by  him,  beginning  with  the  words 
"and  proved  he  had  been  in  possession"  and  closing  with  the  words 
"years  last  past." 

Afterwards  it  appearing  upon  the  return  of  the  certiorari  that  the 
bill  of  exceptions  states  that  the  defendant,  John  Garrett,  proved. 
"that  he  had  been  in  possession,  and  lived  within  the  boundaries 
of  his  patent  ten  years  last  past,"  therefore  the  judgment  is  af- 
firmed. 


BECK,  BY  HIS  NEXT  FRIEND  V.  DOWELL,  EXECUTOR. 
1892.     Supreme  Court  of  Missouri,     hi  Mo.  506. 

Gantt,  p.  J. — This  cause  was  appealed  from  the  circuit  court 
of  Lewis  County  to  the  St.  Louis  Court  of  Appeals.  That  court 
in  an  opinion  by  Judge  Rombauer  affirmed  the  judgment  of  the 
circuit  court ;  but  Judge  Biggs  being  of  the  opinion  that  the  con- 
clusion reached  by  the  majority,  that  evidence  of  the  financial 
condition  of  the  plaintiff  in  an  action  when  the  evidence  will  justi- 
fy the  jury  in  awarding  exemplary  or  punitive  damages  was  ad- 
missible, is  in  conflict  with  and  opposed  to  two  decisions  of  this 
court:  Overholt  v.  Vieths,  93  Mo.  422,  and  Stephens  v.  Railroad, 
96  Mo.  207,  the  cause  was,  under  the  constitution,  certified  to  this 
court. 

I.  When  the  cause  was  heard  in  the  court  of  appeals,  the  in- 
structions were  not  in  the  record.  No  efforts  were  made  to  supply 
them  in  that  court,  and  that  court  rightly  proceeded  on  the  assump- 
tion that  the  trial  court  had  correctly  declared  the  law  to  the  jury. 
Since  the  case  has  reached  this  court  a  certified  copy  of  the  in- 
structions has  been  filed  with  the  record.  The  propriety  of  consider- 
ing these  declarations  of  law  by  this  court,  under  these  circum- 
stances, suggests  itself  at  once. 

While  this  court  obtains  jurisdiction  to  "rehear  and  determine  a 
cause  so  certified  to  us  by  either  of  the  appellate  courts,  as  in  cases 
of  jurisdiction  obtained  by  ordinary  appellate  process,"  there  is 
nothing  in  the  constitution  that  justifies  parties  in  assuming  that 
we  will  or  can  take  cognizance  of  matters  not  in  the  record. 

When  a  record  is  deficient  in  any  material  respect,  the  practice 
is  uniform  that,  the  party  desiring  the  absent  record  should  suggest 
the  diminution  and  apply  for  a  writ  of  certiorari,  or  file  stipulations 


604  WORLEY  V.   snoNG.  §    I 

in  this  court,  supplying  the  record.  In  this  case,  nothing  of  the 
kind  has  been  done,  but  from  the  brief  of  the  appellant,  we  take 
it,  he  assumes  that  these  instructions  are  properly  before  us. 

There  is  no  hardship  in  requiring  parties  to  govern  themselves  by 
the  rules  of  procedure  established  for  the  disposition  of  causes.  For 
the  purposes  of  this  appeal,  these  instructions  are  no  part  of  the 
record,  and  the  cause  will  be  determined  on  the  presumption  that 
the  trial  court  correctly  instructed  the  jury.  Parties  must  pursue 
legal  methods  in  perfecting  their  transcripts,  and  in  the  proper 
courts,  and  in  proper  seasons.     *     *     * 

(So  much  of  the  opinion  as  relates  to  the  admission  of  evi- 
dence of  the  pecuniary  condition  of  plaintiff  in  an  action  for  damages 
for  personal  injuries,  is  omitted.) 


WORLEY  V.  SHONG. 

1892.     Supreme  Court  of  Nebraska.     35  Neb.  311 ;  53  N.  W.  72. 

Post,  J. — The  plaintiff  in  error  sued  the  defendant  in  error  before 
a  justice  of  the  peace  of  Box  Butte  County.  The  case  was  tried 
to  a  jury,  resulting  in  a  verdict  for  the  plaintiff.  From  the  transcri])t 
of  the  justice,  it  appeared  that  the  verdict  was  returned  and  filed 
at  eight  o'clock  and  twenty-five  minutes  P.  M.  Feb.  4,  1890,  but 
that  judgment  was  not  entered  thereon  until  the  next  day.  Defendant  . 
in  error  filed  a  petition  in  error  in  the  district  court  of  said  county 
by  which  he  sought  to  reverse  said  judgment,  on  the  ground  that  it 
was  not  entered  immediately  upon  the  returning  of  the  verdict,  as 
provided  by  section  1002  of  the  code.  In  the  district  court  he  filcd^ 
an  affidavit  to  the  effect  that  the  justice  dunTTTact  enter  ju(lgment_ 
on  the  sanie  day,  the  verdict  was  returned,  and  immediately  there- 
after, and  so  entered  it  on  his  docket,  but  had^siibscquently  altered 
the  entry  so  as  to  show  that  it  was  not  entered  until  the  followrng 
day.  Upon  this  showing  he  suggested  a  diminution  of  the  record, 
and  moved  for  an  order  requiring  the  justice  to  certify  accordingly. 
This  motion  was  .overruled,  to  which  exception  \yas  taken.  The 
district  court  did  not  err  in  overruling  the  motion  aforesaid.  In  all 
.'ipl)cllate  proceedings  the  record  of  the  trial  court,  when  properly 
prepared  and  verified,  imports  absolute  verity.  I^lliott  App.  Proc. 
1X6.  It  is  one  thing  to  amend  the  transcript,  and  quite  a  different 
thing  to  Change  the  record.  Id.  iqo.  The  ruTe  is  well  settled? 
both  in  appeals  anrtprwceriings  in  error,  that  this  suggestion  will  be 
onlcrtaiued  and  the  rule  allowed  only  when  it  is  made  to  appear 
that  tliere  is  an  additional  record  in  the  trial  court;  in  short,  that 
some  part  of  the  record  has  been  omitted.     For  tlie  purpose  of  the 


§     I  CERTIORARI,   IN    GENERAL.  605 

petiition  in  error  the  district  court  rightly  held  that  the  transcript 
of  the  justice,  duly  certified,  could  not  be  impeached.  The  district 
court,  having  refused  to  allow  an  order  for  the  correction  of  the 
record  by  the  justice  of  the  peace,  entered  judgment  reversing 
the  judgment  for  plaintiff.  The  court  evidently  followed  Thompson 
V.  Church,  13  Neb.  287,  13  N.  W.  626,  and  Austin  v.  Brock, 
16  Neb.  642,  21  N.  W.  437,  in  holding  that  the  judgment  was  not 
entered  "immediately"  upon  the  finding  and  return  of  the  verdict, 
within  the  meaning  of  section  1002  of  the  Code.  The  case  is 
clearly  within  the  rule  announced  in  the  above  cases.  It  may  be 
that  a  more  liberal  construction  would  have  been  in  harmony  with 
the  spirit  of  the  code,  but,  having  been  the  recognized  rule  in  this 
court  for  so  many  years,  it  will  be  adhered  to  until  changed  by  the 
legislature.  We  are  of  the  opinion  that  the  justice  of  the  peace 
had  lost  jurisdiction  at  the  time  the  entry  of  judgment  was  made! 
The  judgment  of  the  district  court  is  right,  and  should  be  affirmed. 
The  other  judges  concur. 

See  also  Hipp  v.  Martin,  3  Tex.  18 ;  Welder  v.  Overton.  47  Iowa  538 ; 
Hall  V.  Durham,  113  Ind.  327;  Charbonnet  v.  Dupassaur,  2^  La.  Ann.  105; 
Sowle  v.  Cosner,  56  Ind.  276 ;  Bryson  v.  Johnson  Co.,  100  Mo.  76 ;  Sharon 
V.  Sharon,  79  Cal.  633 ;  Toledo  &c  R.  Co.  v.  Town  of  Chenoa,  43  111.  209. 

The  granting  of  the  writ  as  an  auxilliary  remedy  is  also  discretionary 
with  the  court  and  the  application  therefor  should  be  supported  by 
evidence.     State  v.  Orrick,  106  Mo.  iii. 

Where  the  amendment  to  the  record  is  of  matters  obviously  imma- 
terial or  ineffectual  to  alter  the  decision  of  the  cause,  the  writ  will  be 
refused.     Reed   v.   Curry.  40   111.   yz :   Willis   v.   Chambers.  8  Tex.    150. 

Promptness  on  the  part  of  relator  is  as  much  required  here  as  where 
the   writ   is    used   as   an   original    remedy. 


6o6  THE  CASE  OF  CARDIFFE  BRIDGE.  §    2 

Section  2. — Jurisdiction  to  Issue  the  Writ. 

I.     Courts  possessing  supervisory  powers  and  general  jurisdic- 
tion. 

DRAINAGE  COMMISSIONERS  v.  GRIFFIN  et.  al. 

1890.      Supreme  Court  of  Illinois.      134  111.  330;  supra  p.  550. 


THE  CASE  OF  CARDIFFE  BRIDGE 

1701.     Court  of  King's  Bench,     i   Salkeld   146. 

Certain  orders  of  justices  made  pursuant  to  a  private  act  of 
parliament  for  repairing  Cardiffe  Bridge,  were  removed  hither  by 
certiorari;  and  one  objection  was  made,  That  this  court  could  not 
send  a  certiorari  to  the  justices  of  the  peace  in  Wales;  because  it 
might  be  sent  by  the  court  of  Grand  Sessions,  which  was  as  the 
King^s  Bench,  and  which  by  this  means  was  skipped  over  and 
rendered  useless.  Sed  non  allocatur:  It  is  the  constant  practice 
to  send  them  into  the  counties  palatine,  and  yet  they  have  original 
jurisdiction,  and  the  same  courts  within  themselves.  The  counsel 
for  the  "Welsh  jurisdiction  said,  this  dififered,  because  the  juris- 
diction of  counties  palatine  was — derived  from  the  crown.  But 
this  was  not  regarded.  And  the  chief  justice  said  that,  in  case  of 
sewers,  this  court  inquires  into  the  nature  of  the  fact  before  they 
grant  a  certiorari,  that  no  mischief  may  happen  by  inundations  in  the 
meantime ;  but  this  is  only  a  discretionary  execution  of  their  au- 
thority, for  wherever  any  neiv  jurisdiction  is  erected,  he  it  by  private 
or  public  act  of  parliament,  they  are  subject  to  the  inspections 
of  this  court  by  writ  of  error,  or  by  certiorari  and  mandamus. 


GROENWELT  v.  BURWELL. 
170T.     Court    of    King's    Bench,     i    Salkeld,    144. 

TiiE_  censors  of  the  college  of -.physicians,  have  .power  by  their 
cTia'rtcr,  confirmed  by  act  of  iiarliamcnt,  to  fine  and  imprison  for  mal- 
practice iji  physic ;  and  accordingly  they  condemned  Dr.  Groenw.elt, 
for  administering  insalubrcs  pillulas  noxia  mcdicanicnfa,  and  fined 
ancj  imprisoncfl  liim  ^  y\nd  tJlC  (mention  being,  wliqthcr  error  or  cer- 
/iprojrtiay?     It  was  held  per  Holt,  Chief  justice. 


§  2  JURISDICTION  TO  ISSUE  THE  WRIT.  607 

I  St.     That  error  would  not  lie  upon  Uie  jiidgment,  because  their  q 

•proceeding  is  not  according  to  the  course  of  the  common  law,  but  a 

without  indictment  or  formal  judgment:     Yet,  r      *'»\. 

2dly,  That  certiorari  lies ;  for  no  court  can  be  intended  exempl/^l'^,^'^ 
from  the  superintendency  of  the  king  in  this  court  of  B.  R.  Ife/ 
Is  a  consequence  of  every  inferior  jurisdiction  of  record,  that 
their  proceedings  be  removable  into  this  court,  to  inspect  the  record, 
and  see  whether  they  keep  themselves  within  the  limits  of  their 
jurisdiction.  Vide  3  Cro.  489.  By  the  23d  H.  8,  c.  5,  the  commis- 
sioners of  sewers  are  to  certify  their  proceeding  into  chancery; 
and  the  13  Elizabeth  c.  9,  says  the  commissioners  shall  not  be 
compelled  to  make  any  certificate :  Upon  this,  by  mistake,  they 
thought  themselves  not  accountable  on  a  certiorari,  and  refused 
to  obey  a  certiorari  issued  out  of  the  king's  bench  ;  and  for  this 
the  whole  body  of  the  commissioners  were  laid  by  the  heels. 


COATMONWEALTH    v.    BALPH    et    al. 

1886.     Supreme  Court  of  Pennsylvania,     hi  Pa.  St.  365  ;  3. 

220. 

Paxson,  J. — On  March  i,  1884,  the  defendant  below  presented 
a  petition  to  this  court  praying  us  to  issue  a  writ  of  certiorari  to 
the  quarter  sessions  of  Warren  county  to  remove  into  this  court 
the  indictment  and  record  of  a  certain  case  of  Com.  v.  R.  A. 
Balph,  Henry  P.  Ford,  and  others.  The  defendants  were  indicted 
for  conspiracy  and  assault,  and  the  ground  upon  which  the  re- 
moval was  asked  was  that  the  defendants  could  not  have  a  fair 
trial  in  Warren  county  for  certain  reasons  set  forth  in  the  said 
petition;  "  Wiftfout  entering  into  detail,  it  is  sufficient  to  say  that 
the  case  arose  out  of  a  conflict  of  jurisdiction  between  the  court 
of  Common  Pleas  of  Warren  county  and  the  court  of  Common 
Pleas  No.  2,  of  Allegheny  county,  in  regard  to  the  appointment  of 
a  receiver,  culminating  in  the  appointment  of  such  officer  by  each 
court,  and  an  attempt  by  each  to  enforce  its  own  orders  and  decrees. 
So  far  did  this  proceed  that  the  court  of  Warren  county  discharged 
upon  habeas  corpus  a  person  adjudged  guilty  of  contempt  by  the 
court  of  Allegheny  county,  and  who  was  in  custody  under  attach- 
ment. The  petition  further  averred  that  a  fair  and  impartial  trial 
before  a  judge  and  jury  of  Warren  county  could  not  be  had,  because 
of  the  excitement  and  prejudice  existing  against  them  in  said 
county,  not  only  on  the  part  of  the  public  generally,  but  of  the 
jurors  likely  to  be  impaneled  in  the  case,  and  the  judge  before 
whom  the  cause  would  be  tried. 


6o8  COMMONWEALTH    V.    BALPH    ET    AL.  §    2 

For  the  purposes  of  this  case  we  must  assume  the  statements 
of  the  petition  to  be  true.  And  even  if  the  petitioners  are  mistaken 
in  whole  or  in  part  in  their  allegations  of  prejudice,  the  fact  that  they 
have  thus  publicly  challenged  for  cause  the  presiding  judge  would 
place  the  latter  in  a  very  unpleasant  position  were  he  called  upon  in 
the  course  of  his  official  duty  to  try  the  cause.  Upon  this  point  we 
cannot  do  better  than  to  quote  the  remarks  of  Lewis,  J.,  in  a 
similar  application  made  to  this  court  by  one  Derringer,  in  1857. 
He  says :  "If  it  has  been  material  to  produce  the  statement  of  the 
judges,  I  see  no  reason  why  it  should  not  be  produced,  as  the 
time  was  ample.  I  see,  therefore,  no  reason  for  continuing  the 
cause.  As  the  matters  strike  me,  a  statement  of  the  judges  in 
opposition  to  the  affidavit  would  not  "be  material.  If  what  Mr. 
Derringer  says  in  his  affidavit  be  true,  that  two  of  them  (the  judges) 
expressed  themselves  in  such  a  manner  as  to  render  a  trial  before 
them  very  unfair  to  the  accused,  it  would  be  very  improper  for 
them  to  try  this  cause.  If  his  statement  against  them  be  false, 
we  may  well  suppose  the  feeling  which  that  statement  would  make 
in  the  heart  of  those  judges.  We  cannot  control  human  nature, 
and  where  a  judge  has  a  man  before  him  who  has  made  a  false 
charge  against  him  it  is  almost  impossible  to  administer  justice 
fairly.  I  think  it  would  be  very  unfair  under  these  circumstances, 
to  expect  either  of  these  judges  to  try  this  cause.  They  would 
be  the  last  ones  to  whom  to  apply.  Whether  the  affidavits  be  true  or 
false,  it  seems  to  me  a  good  reason  for  asking  them  not  to  decide." 

Under  all  the  circumstances,  as  developed  by  this  petition,  we 
think  the  judge  of  Warren  county  ought  not  to  be  called  upon 
tf)  sit  in  this  cause.  In  saying  this,  we  wish  it  distinctly  under- 
stood that  w^e  in  no  way  reflect  upon  him  as  a  judge  or  a  man  ; 
and  we  are  of  opinion  that  sufficient  facts  are  averred  as  to  render 
it  extremely  doubtful  whether  an  impartial  trial  can  be  had  before 
a  Warren  county  jury,  and  that  the  cause  is  one  which  would 
justify  us  in  removing  it  if  we  have  the  power. 

This  brings  us  at  once  to  the  vital  question,  whether  such  power 
still  exists  in  this  court.  I  say  still  exists,  because  no  one  doubts 
that  this  power  was  lodged  in  this  c(nirt  up  to  and  until  the 
adr)j)tion  of  the  present  constitution.  It  has  been  not  only  asserted 
l)ut  repc-atcdly  exercised.  Causes  have  been  removed  into  this 
court,  and  tried  by  several  of  the  judges  who  have  preceded  us. 
I'^or  over  150  years  the  right  of  a  judge  of  this  court  to  allow 
the  writ  of  certiorari  to  remove  an  indictment  before  trial  has  been 
-cttlcd  beyond  controversy.  The  question  as  now  presented  is  one 
of  grave  inii)ortance,  and  we  have  given  it  the  most  careful  attention. 
It  has  Ik-ch  held  under  advisement  for  over  a  year,  as  it  was  of  far 
fnore  importance  tliat  the  principle  should  be  carefully  and  intelli- 
gently dcciVled  tlum  that  it  should  be  done  speedily.     The  delay  of 


§  2  J  l-RISDK 'llUN  T(J  ISSUE  THE  WRIT.  609 

one  not  very  important  case  is  of  less  consequence  than  the  settUng 
of  an  important  principle,  which  is  to  be  a  rule  of  action  for  all 
time. 

It  is  necessary  to  an  intelligent  discussion  of  the  subject  to  review 
to  some  extent  the  past  legislation  of  the  state.  I  do  so  as  con- 
cisely as  is  consistent   with   its  proper  understanding.     '*'     *     * 

(The  court's  review  of  the  legislation  on  this  subject,  is  omit- 
ted.)     *     *     * 

*  *  *  Here  endeth  our  legislation  upon  this  subject.  It  will 
thus  be  seen  that  the  right  of  this  court,  or  a  judge  thereof,  to 
issue  the  writ  of  certiorari  is  distinctly  recognized  by  the  constitution 
of  1790,  and  by  three  acts  of  assembly.  There  never  was  a  time 
since  the  passage  of  the  act  of  1722  when  this  right  was  not  to 
be  found  upon  our  statute  books.  It  has  existed  practically  unchal- 
lenged for  over  150  years.  If  taken  away  at  all,  it  is  by  the  con- 
stitution of  1874.  Before  I  discuss  that  question,  I  propose  to  con- 
sider the  object  and  effect  of  the  removal  of  a  criminal  case  into 
this  court,  and  the  power  of  the  court  in  the  premises. 

It  will  be  observ^ed  that  the  act  of  1722  expressly  confers  upon  this 
court  the  powers  of  the  king's  bench  in  criminal  cases.  This  is  plain 
from  the  language  of  the  act  itself,  and  authority  is  scarcely  needed 
for  so  plain  a  proposition.  That  there  may  be  no  doubt,  however, 
upon  this  question,  I  will  refer  to  the  case  of  Com.  v.  Simpson, 
2  Grant  Cas.  438,  where  the  act  of  1722  was  under  consideration, 
and  the  construction  I  have  indicated  placed  upon  it  by  the  court. 

What  are  the  powers  of  the  king's  bench  as  it  existed  in  England 
when  the  act  of  1722  was  passed?  We  all  know,  in  a  general  way 
that  it  was  the  supreme  court  of  oyer  and  terminer  and  general  jail 
delivery ;  that  when  it  sits  in  any  county  it  outranks  and  supersedes 
any  other  criminal  court  there  sitting.  It  was  always  ambulatory, 
and  followed  the  king's  person.  In  contemplation  of  law,  the  king 
sits  there  in  person ;  at  one  time  he  sat  therein  in  point  of  fact. 
Henry  III  sat  in  person  with  the  justices  /;/  banco  rci^io  at  the  ar- 
raignment of  Peter  de  Revallio.  Speed  521.  At  another  time  the 
king  sat  there  in  person  at  the  arraignment  of  Hubert,  Earl  of  Kent. 
Speed  524,  Coke,  71.  But  the  king  never  took  part  in  the  trial; 
it  was  committed  to  his  judges ;  yet  the  fact  of  his  actual  or 
supposed  presence  in  the  court  gave  to  the  latter  great  dignity  and 
importance.  In  Sharswood's  Blackstone,  bk.  3,  p.  42,  the  court  of 
king's  bench  is  thus  described :  "The  jurisdiction  of  this  court  is 
^>ery  high  and  transcendent.  If  keeps~all  irifm^f~Jimsdictions 
H'tlhuflhe  bounds  of  tlietr  authority  and  may  either  remove  their 
proceedings  to  be  determined  lure,  or  prohibit  their  progress  bel- 
low. It  supermtends  all  cvi'il  corporations  in  the  kingdom.  It  com- 
inands  magistrgjes^  and  others  to  do  what  their  duty  requires,  m. 
^very  case  zvhere  there  is  no  other  specific  remedy.    It  protects  the 


6lO  COMMONWEALTH    V.    BALPII    ET    AL.  §    2 

liberty  of  the  subject  by  speedy  and  summary  interposition.  It  takes 
cognisance  both  of  criminal  and  civil  cases, — the  former  in  whatj^ 
called  the  crozvn  side  or  croum  oiUce,  the  latter  in  the  J>lea  side  of 
the  court."  And  in  book  4  of  the  same  work,  at  page  265,  we  find 
l^e  following  in  regard  to  its  powers  on  the  crown  side:  "The 
court  of  king's  bench,  concerning  the  nature  of  which  we  partly 
inquired  in  the  preceding  book,  was  (we  may  remember)  divided 
into  a  crown  side  and  a  plea  side ;  and  on  the  crown  side  or  crown 
office  it  takes  cognizance  of  all  criminal  causes,  from  high  treason 
down  to  the  most  trivial  misdemeanor  or  breach  of  the  peace.  Into 
this  court  also  indictments  from  all  inferior  courts  may  be  removed 
bv  writ  of  certiorari,  and  tried,  either  at  bar  or  nisi  priiis,  by  jury 
of  the  county  out  of  which  the  indictment  is  brought."  "Also 
this  court,  by  the  plentitude  of  its  power,  may  as  well  proceed  on 
indictments  removed  by  certiorari  out  of  inferior  courts  as  on  those 
originally  commenced  here,  whether  the  court  below  be  determined 
or  still  in  esse,  and  whether  the  proceedings  be  grounded  on  the 
common  law  or  on  a  statute  making  a  new  law  concerning  an  old 
offense."  2  Bac.  Abr.  142,  tit.  "Court  of  King's  Bench."  "Also, 
it  hath  so  sovereign  a  jurisdiction  in  all  criminal  matters  that  an 
act  of  parliament,  appointing  that  all  crimes  of  a  certain  denomina- 
tion shall  be  tried  before  certain  judges,  doth  not  exclude  jurisdiction 
of  this  court,  without  express  negative  words ;  and  therefore  it  hath 
been  resolved  that  33  Hen.  VIII,  c.  12,  which  enacts  that  all 
treasons,  etc.,  within  the  king's  house,  shall  be  determined  before 
the  lord  steward  of  the  king's  house,  etc.,  doth  not  restrain  this  court 
from  proceeding  against  such  offenses."    Id. 

To  the  same  point  are  Viner's  Abridgement  and  other  English 
text  books  and  decisions  without  number.  The  power  of  the 
king's  bench  is  well  and  accurately  defined,  and  is  not  a  subject  of 
dispute.  It  possesses  the  inherent  power  of  removing  by  certiorari 
the  records  of  any  criminal  case  from  the  inferior  courts  at  any 
.stage  of  the  proceedings.  After  a  case  has  been  so  brought  into  the 
king's  bench,  it  may  be  tried  at  bar  or  at  nisi  prius  by  a  jury  from 
the  county  from  which  the  record  was  brought ;  or,  if  it  is  suggested 
upon  the  record,  and  proof  by  affidavit  that  an  impartial  trial  cannot 
Ik,"  had  in  such  county,  the  record  may  be  remanded  to  another 
county  for  trial.  The  latter  is  an  important  provision,  as  it  amounts, 
l^ractically,  to  a  change  of  venue,  and  may  take  place  in  cases 
where  no  such  change  is  given  by  statute.  It  requires,  therefore, 
careful  consideration.  If  I  show  that  it  exists  in  the  king's  bench, 
I  sliow  that  it  exists  here,  imless  taken  away  by  express  words 
of  the  constitution  or  act  of  assembly. 

In  the  case  of  Rex  v.  Cowlc,  2  l')urr.  834,  that  great  criminal 
lawyer.  Lord  Mansfield,  at  tlial  time  chief  justice  of  the  king's 
bench,  laid  down  the  rule  as  follows:     "i^)Ut  the  law  is  clear  and 


^  2    •  JURISDICTION  TO  ISSUE  THE  WRIT.  Gil 

uniform,  as  far  back  as  it  can  be  traced.  *  *  *  So,  in  parts 
of  England  itself,  where  an  impartial  trial  cannot  be  had  in  the 
proper  county  it  shall  be  tried  in  the  next.  As  5  Geo.  I,  Rex  v. 
Inhabitants  of  the  county  of  the  city  of  Norwich,  about  the  co^nity 
bridge,  the  trial  was  in  Suffolk.  This  is  the  ancient  and  general 
rule  wherever  the  court  has  jurisdiction." 

In  Rex  V.  Harris,  3  Burr.  1330,  the  application  to  remove  the 
record  to  an  adjoining  county  for  trial  was  refused  upon  the  ground 
that  the  facts  did  not  warrant  it.  All  the  judges,  however,  were  of 
jpinion  that  they  had  the  power  to  order  such  removal.  Such 
)rder  was  made  in  King  v.  Inhabitants  of  Nottingham,  tried  befoie 
Lord  Chief  Justice  Hale,  2  Lev.  112.  See  Hale,  P.  C.  215,  and 
note.  The  same  rule  was  laid  dowm  in  King  v.  The  Inhabitants  of 
the  County  of  Cumberland,  6  Term  R.  194,  decided  in  1795  ;  and 
numerous  other  cases  will  be  found  cited  in  the  opinion  of  tlie 
court. 

This  is  the  settled  law  of  England,  and  in  this  country  in  those 
states  in  which  the  supreme  court  is  clothed  with  the  king's  bench 
powers  the  same  rule  prevails.  Thus  in  New  York,  in  People  v. 
Vermilyea,  7  Cow.  137,  where  an  indictment  had  been  removed 
by  a  certiorari,  into  the  svipreme  court  for  trial,  and  the  defendant 
moved  for  a  change  of  the  place  of  trial,  it  was  said  by  Chief  Justice 
Savage :  "Changing  the  venue,  speaking  tecTinically,  is  out  of  the 
question.  The  course  in  criminal  prosecutions,  where  a  clear  case 
is  made  out,  is  to  order  a  suggestion  upon  the  ,record  that  a  fair 
and  impartial  trial  cannot  be  had  in  the  county  .Avhere  the  offense 
is  laid.  A  venire  is  then  awarded  to  the  sheriff  or  another 
county,  and  the  cause  tried  there,  the  indictment  remaining 
unaltered  as  to  the  venue."  Woodworth,  J.,  concurred  in  the  deci- 
sion, and  said :  "There  is  no  dou1>t  of  our  power,  upon  a  proper 
case,  to  send  a  criminal  cause  down  for  trial  to  a  county  other 
than  that  in  which  the  venue  is  laid.  *  *  *  Hence,  the  venue, 
as  such,  cannot  be  changed.  The  place  of  trial  must  be  altered 
by  suggestion ;  and  on  clear  proof  that  the  cause  cannot  be  tried 
in  the  coimty  where  the  oft"ense  is  laid,  with  saf&ty  to  the  rights 
of  the  defendant." 

The  same  rule  exists  in  Tennessee.  In  Kendrick  v.  State,  Cook 
475,  it  was  held,  citing  the  English  cases,  above  referred  to,  that 
when  it  was  made  to  appear  to  the  supreme  court,  upon  the  removal 
of  an  indictment,  that  a  fair  trial  cannot  be  had  in  the  count v 
where  the  venue  is  laid,  the  place  of  trial  will  be  changed.  And  in 
Bob,  a  slave  v.  State,  2  Yerg.  176,  it  was  held  that  as  the  judges 
of  that  court  were  clothed  with  all  the  powers  of  tfie  king's  bench, 
they  could  issue  a  certiorari  to  the  lowe^r  court  to  remove  the  record 
of  a  criminal  case  for  trtal ;  Peck,  J.,  saying:  "In  England  th^re 
is  no  question  the  certiorari  would  lie  in  such  case,  either  before  or 


6l2  COMMONWEALTH    V.    BALPH    ET    AL.  §    2 

after  judgment.  Before  judgment  on  a  case  made  out  that,  because 
of  the  public  clamor,  justice  could  not,  in  all  likelihood,  be  done 
the  person  charged  in  the  county  where  charged."     *     *     * 

In  New  Jersey  the  same  doctrine  was  held  in  State  v.  Hunt,  i 
X.  J.  L.  287;  State  v.  Gibbons,  4  N.  J.  L.  41;  Nicholls  v.  State, 
5  X.  J.  L.  539;  and  in  Maryland,  in  State  v.  Judges,  3  Har.  & 
McH.'ii5.     *     *     * 

From  the  foregoing  I  take  it  to  be  clear  that  up  and  prior  to 
the  adoption  of  the  constitution  of  1874,  this  court  possessed  the 
inherent  power  of  issuing  writs  of  certiorari  to  remove  criminal 
cases ;  to  tr\^  such  cases  at  bar  in  any  district  where  it  might 
chance  to  be  sitting,  or  to  send  it  for  trial  at  nisi  prius;  and  upon 
sufficient  cause  shown  to  send  it  for  trial  to  a  county  other  than 
the  one  in  which  the  indictment  was  foimd.  And  not  only  was  such 
pcAver  inherent  in  the  court,  but  the  power  to  remove  indictments 
has  been  from  time  to  time  expressly  conferred  by  act  of  assembly. 
There  never  has  been  a  period  since  the  time  the  court  was  first 
organized  that  it  did  not  exist,  and  the  statutes  conferring  it  have 
never  been  expressly  repealed.  Have  they  been  repealed  by  impli- 
cation ?  It  would  be  a  novel  doctrine  to  hold  that  important  powers 
which  have  been  exercised  by  the  highest  judicial  tribunal  in  the 
state  for  over  150  years,  not  only  permissively  but  also  by  the 
express  command  of  the  statute,  can  be  taken  away  by  mere  implica- 
tion. The  suggestion  of  such  a  principle  carries  with  it  its  own 
refutation.  But  the  law  upon  this  subject  is  not  uncertain.  Just 
here  it  is  well  to  bear  in  mind  that  the  question  of  our  power 
to  issue  the  writ  of  certiorari,  and  our  power  over  the  case  after 
removal  of  the  record  into  this  court,  are  separate  questions.  I 
will  consider  the  latter  branch  of  this  case  when  I  reach  it.  At 
present  I  am  upon  the  question  of  the  power  to  issue  the  writ. 

The  writ  of  certiorari  is  a  writ  of  common  right,  to  be  taken 
away,  not  by  implication,  but  only  by  express  words  (Mauch  Chunk 
V.  Nescopeck,  21  Pa.  St.  46;  Rex  v.  Moreley,  2  Burr.  T040;  Rex  v. 
Jukes,  8  Term  R.  544;)  and  in  Overseers  of  the  Poor  v.  Smith,  2 
Scrg.  &  R,  363.  it  was  held  that  the  jurisdiction  of  the  supreme 
court  can  be  taken  away  only  by  express  words  or  irresistible  impli- 
cation. We  might  multiply  authorities  indefinitely  upon  this  point, 
were  it  necessary.  It  is  sufficient  to  refer  to  the  late  case  of 
Cr.imty  of  Allegheny  v.  Ciibson,  00  Pa.  St.  397.  where  the  subject 
<')f  the  effect  of  the  new  constitution  upon  existing  laws  is  discussed 
at  U-ngth.     *     *     * 

It  is  urged,  however,  that  if  the  right  to  issue  the  writ  technically 
exists,  yet  wc  have  no  power  to  try  or  control  this  case  after  it  is 
brought  here;  and  attention  is  called  to  the  third  section  of  article 
5  «'if  the  rrmstilution.  as  taking  away  our  power  in  this  respect.  If, 
in  ywonf  of  fnrt.  we  have  no  jjower  ovct  a  case  after  it  is  brought 


§    2  JURISDICTION  TO  ISSUE  THE  WRIT.  613 

here,  it  would  be  a  persuasive  argument  against  the  power  to  bring 
it  here,  as  we  do  not  propose  to  do  a  vain  thing,  nor  does  the  law 
contemplate  that  we  should. 

The  portion  of  the  constitution  referred  to  is  as  follows : — "The 
jurisdiction  of  the  supreme  court  shall  extend  over  the  state, 
and  the  judges  thereof  shall,  by  virtue  of  their  offices,  be  justices  of 
oyer  and  terminer  and  general  jail  delivery  in  the  several  counties ; 
they  shall  have  original  jurisdiction  in  cases  of  injunction  where  a 
corporation  is  a  party  defendant,  of  habeas  corpus,  of  mandamus  to 
courts  of  inferior  jurisdiction,  and  of  quo  ivarratito  as  to  all  officers 
of  the  commonwealth  whose  jurisdiction  extends  over  the  state, 
but  shall  not  exercise  any  other  original  jurisdiction.  They  shall 
have  appellate  jurisdiction  by  appeal,  certiorari,  or  writ  of  error 
in  all  cases,  as  is  now  or  may  be  hereafter  provided  by  law." 

In  the  consideration  and  discussion  of  this  section  of  the  consti- 
tution we  throw  out  of  view  the  copious  citations  which  have  been 
furnished  us  from  the  debates  in  the  convention.  They  are 
of  value  as  showing  the  views  of  individual  members,  and  as  indi- 
cating the  reasons  for  their  votes ;  but  they  give  us  no  light  as  to 
the  views  of  a  large  majority  who  did  not  talk;  much  less  of  the 
mass  of  our  fellow  citizens  whose  votes  at  the  polls  gave  that 
instrument  the  force  of  fundamental  law.  We  think  it  safer  to  con- 
strue the  constitution  from  what  appears  upon  its  face,  nor  do  we 
propose  to  go  beyond  the  necessities  of  this  case.  Other  delicate 
questions  may  arise  in  the  future  upon  this  section,  and  we  leave 
them  until  they  are  presented. 

From  this  section,  we  may  gather,  with  reasonable  certainty, 
the  following:  (i)  That  the  jurisdiction  of  the  supreme  court 
extends  over  the  entire  state;  (2)  that  the  justices  thereof  are 
ex  officio  judges  of  the  oyer  and  terminer  in  every  county  of  the 
commonwealth;  and  (3)  that  the  original  jurisdiction  of  the  court, 
excepting  in  the  excepted  cases,  is  abolished. 

The  first  two  propositions  are  not  new.  They  existed  in  prior  con- 
stitutions, and  conferred  no  additional  power.  The  third  is  a 
limitation  of  our  power  as  formerly  exercised,  by  taking  away  a 
portion  of  our  original  jurisdiction.  That  it  was  intended  to  sweep 
away  the  court  of  nisi  prins,  in  which  our  original  jurisdiction 
had  been  generally,  if  not  wholly,  exercised,  was  not  left  open  to 
conjecture ;  as  it  is  expressly  declared  by  the  twenty-first  section 
of  die  fifth  article  that  "the  court  of  nisi  prins  is  hereby  abolished, 
and  no  court  of  original  jurisdiction  to  be  presided  over  by  any 
one  or  miore  of  the  judges  of  the  supreme  court  shall  be  estab- 
lished." It  is  contended  that  this  language,  in  connection  with  the 
third  section  of  article  5,  takes  away  all  our  powers  as  justices  of  the 
oyer  and  terminer.  We  do  not  so  understand  the  constitution,  nor 
does  it  so  read.     Conceding  for  the  purposes  of  this  case,  that  we 


6l4  COMMONWEALTH    V.    BALPII    ET    AL.  §    2 

may  no  longer  try  a  case  brought  into  this  court,  at  nisi  prins,  it 
is  begging  the  question  to  say  we  may  not  try  it  at  all.  The  consti- 
tution must  be  so  read  as  to  give  effect  to  all  of  its  parts ; 
and  where  it  distinctly  says  that  the  judges  of  this  court  shall 
be  ex  oificio  justices  of  the  oyer  and  terminer  and  general  jail 
delivery  in  every  county  in  the  state  it  means  something.  It  is  not 
an  idle  phrase,  inserted  for  mere  sound  or  to  fill  up  space.  It 
was  not  new ;  it  was  taken  literally  from  the  constitution  of  1838. 
It  was  known  to  the  convention  that  this  court  had,  in  several 
cases,  placed  a  construction  upon  this  clause.  It  is  sufficient  to 
refer" to  a  single  case,  (Com.  v.  Ickhoff,  33  Pa.  St.  80,)  in  which  it 
was  distinctly  held  that  "each  of  the  judges  of  this  court  has  power 
to  hold  a  court  of  oyer  and  terminer  and  general  jail  delivery 
in  any  county  of  the  state."  It  was  said  by  Chief  Justice  Lowrie : 
"This  is  a  cause  in  the  oyer  and  terminer,  and  the  president  judge, 
within  whose  jurisdiction  it  falls,  represents  to  us  that  there  is-  a 
legal  impediment  that  prevents  him  hearing  it,  and  asks  us  to 
send  one  of  the  judg^es  of  this  court  to  try  it.  We  think  that  we  are 
bound  to  do  so.  We  know  of  no  legal  or  constitutional  authority 
for  any  jndge  of  the  common  pleas  to  hold  a  court  of  oyer  and 
terminer  out  of  his  district,  and  when  such  a  court  is  held  by 
judges  of  the  common  pleas,  it  requires  two  to  make  a  quorum, 
the  president  being  one.  Const,  v.  5.  But  the  jurisdiction  of  this 
court  extends  over  the  whole  state,  and  its  judges  are,  by  virtue  of 
their  office,  justices  of  oyer  and  terminer  and  general  jail  delivery 
in  the  several  counties ;  and  the  judges  of  the  common  pleas  cannot 
hold  an  oyer  and  terminer  or  jail  delivery  court  while  the  supreme 
CDurt,  or  any  of  them,  are  sitting  in  the  same  county  for  criminal 
trials.  Const,  art.  4,  5.  This  makes  it  appear  plain  that  each  judge 
of  this  court  has  power  to  hold  a  court  of  oyer  and  terminer 
or  of  general  jail  delivery  in  any  county  of  the  state.  They  are 
severally  justices  for  this  purpose,  and,  no  cjuorum  being  established, 
each  of  them  has  full  and  equal  auth.ority  to  hold  such  courts. 
■'Any  of  them  sitting  in  the  same  county  excludes  the  jurisdiction  of 
the  common  pleas  judges;  and  this  can  mean  no  less  than  any  of 
them  had  jurisdiction,  and  therefore  excludes  all  other  jurisdictions 
that  are  not  superior."  v 

That  the  same  power  exists  now  is  beyond  all  controversy.  From 
all  that  has  been  said,  it  would  seem  to  be  clear  that  the  only 
change  which  the  constitution  makt's  in  our  powers  in  criminal 
ca.ses  is  to  prevent  our  trying  indictments  in  the  nisi  prins.  -That 
court  is  dcarl  without  the  hope  of  resurrection.  But  each  judge  has 
the  power  to  .sit  and  try  indictments  in  any  county  of  the  state. 

.Much  less  docs  the  constitution  affect  the  power  inherent  in 
the  court,  and  expressly  conferred  by  statute,  of  removing  criminal 
cases   into   this   court   by    certiorari.      It    is   not,    strictly   speaking, 


§    2  JURISDICTION  TO  ISSUE  THE  WRIT.  615 

original  jurisdiction.  A.j:crt'wrari  brings  up  a  record  for  review ; 
it_is_nQl-ihe£oimiaje,n£eaient  of  an  original  suit.  The  general  powers 
of  supervision  over  criminal  cases,  inherent  to  the  king's  bench, 
_and  expressly  conferred  upon  this  court  by  statute,  rn^ans  some- 
thing more  than  the  trial  of  the  case  before  a  _ju.ry,  It  means, 
iH3ts  broadest  sense,  that  we  shall  see  that  every  man  charged 
with  crime  shall  have  a  fair  and  impartial  trial ;  that  when  it  is 
Tnade  clear  to  us  that  a  man  cannot  have  such  trial,  either  from  an 
excited,  and  inflamed  condition  of  the  public  mind  in  the  county' 
where  the  indictment  was  found,  or  from  feeling'  of  'prejudice 
on  "the' part  of  the  judge,  or  any  other  sufficient  cause,  we  shall 
issue  our  certiorari,  remove  the  record  into  this  court,  and  send  it 
down  to  another  county  for  trial,  and,  if  necessary,  before  one 
of  the  judges  of  this  court.  That  it  is  a  power  to  be  exercised 
wfElT  extreme  caution  is  admitted.  That  it  may  be  abused  is  possible. 
But  I  can  readily  imagine  circumstances  in  the  future  which  would 
miake  the  exercise  of  this  power  the  only  barrier  between  a  good 
citizen  and  gross  oppression  If  the  people  shall  be  ot  opinion 
that  it  was  unwisely  conferred,  or  that  it  is  being  improperly 
exercised,  they  can  change  it  by  a  modification  of  the  fundainental 
law.  The  mere  knowledge  that  such  a  power  exists  in  this  court 
it  is  believed  will  make  its  frequent  use  unnecessary. 

The  rule  is  made  absolute ;  and  it  is  ordered  that  the  writ  of 
certiorari  issue  as  prayed  for.  When  the  record  comes  up  we 
will  be  prepared  to  entertain  a  motion  looking  to  a  speedy  trial  of  the 
cause. 

(Dissenting  opinion  of  Trunkey,  J.,  omitted.) 


2.     Federal  courts. 

Ex  PARTE  VALLANDIGHAM. 

1863.     Supreme  Court  of  IJnited  States,     i  Wallace,  243. 

(This  case  arose  on  a  petition  of  Clement  L.  Vallandigham  for 
a  certiorari,  to  be  directed  to  the  Judge  Advocate  of  the  Arm}' 
of  the  United  States,  to  send  up  to  this  court,  for  its  review,  the 
proceedings  of  a  military  commission,  by  which  petitioners  had  been 
tried  and  sentenced  to  be  imprisoned  for  uttering  treasonable  and 
seditious  words  against  the  government  of  the  United  States.) 

Wayne,  J.,  delivered  the  opinion  of  the  court. 

General  Burnside  acted  in  the  matter  as  tlie  general  commanding 
the  Ohio  Department,  in  conformity  with  the  instructions  for  the 
government  of  the  armies  of  the  United  States,  approved  by  the 
president  of  the  United  States,  and  publisTied  by  the  Assistant  Adju- 
tant-General by  order  of  the  Secretary  of  War,  on  the  24th  of 
April,  1863. 


6l6  EX  PARTE  VALLANDIGHAM.  §    2 

It  is  affirmed  in  these  instructions,  that  mihtary  jurisdiction  is  of 
two  kinds.  First,  that  which  is  conferred  and  defined  by  statute; 
second,  that  which  is  derived  from  the  common  law  of  war.  "Mih- 
tary offences,  under  the  statute,  must  be  tried  in  the  manner  therein 
directed ;  but  mihtary  offences  which  do  not  come  within  the  stat- 
ute, must  be  tried  and  punished  under  the  common  law  of  war. 
The  character  of  the  courts  which  exercise  these  jurisdictions  de- 
pends upon  the  local  law  of  each  particular  country." 

In  the  armies  of  the  United  vStates,  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  "rules  and  regula- 
tions of  war,"  or  the  jurisdiction  conferred  by  statute  or  court- 
martial,  are  tried  by  military  commissions. 

These  jurisdictions  are  applicable,  not  only  to  war  with  'foreign 
nations,  but  to  a  rebellion,  when  a  part  of  the  country  wages  war 
against  its  legitimate  government,  seeking  to  throw  off  all  allegiance 
to  it,  to  set  up  a  government  of  its  own. 

Our  first  remark  upon  the  motion  for  a  certiorari  is,  that  there 
is  no  analogy  between  the  power  given  by  the  constitution  and  law 
of  the  United  States  to  the  Supreme  Court,  and  the  other  inferior 
courts  of  the  United  States,  and  to  the  judges  of  them,  to  issue  such 
processes,  and  the  prerogative  power  by  which  it  is  done  in  England. 
The  purposes  for  which  the  writ  is  issued  are  alike,  but  there  is 
no  similitude,  in  the  origin  of  the  power  to  do  it.  In  England,- 
the  court  of  king's  bench  has  the  superintendence  over  all  courts 
of  an  inferior  criminal  jurisdiction,  and  may  by  the  plenitude  of  its- 
power,  award  a  certiorari  to  have  an  indictment  removed  and  brought, 
before  it ;  and  where  such  certiorari  is  allowable,  it  is  awarded  at 
the  instance  of  the  king,  because  every  indictment  is  at  the  suit 
of  the  king,  and  he  has  a  prerogative  of  suing  in  whatever  court  he 
pleases.  The  courts  of  the  United  States  derive  authority  to  issue 
such  a  writ  from  the  Constitution  and  legislation  of  Congress.  To 
])lace  the  two  sources  of  the  right  to  issue  the  writ  in  obvious  con- 
trast, and  in  application  to  the  motion  we  are  considering,  for  its 
exercise  by  this  court,  we  will  cite  so  much  of  the  third  article  of 
the  Constitution  as  we  think  will  best  illustrate  the  subject. 

"The  judicial  power  of  the  United  States  shall  be  vested  in 
one  supreme  court,  and  in  such  inferior  courts,  as  the  Congress  may, 
from  time  to  time  ordain  and  establish."  "The  judicial  power  shall 
(•xtcnd  to  all  cases  in  law  and  equity,  arising  under  the  constitution, 
tlie  laws  of  the  United  States,  and  treaties  made  or  which  shall 
Ik;  made  under  their  authority;  to  all  cases  affecting  ambassadors, 
other  public  tnmisters,  and  consuls,"  &c.,  &c.,  and  "in  all  cases 
nffcrtiuff  ambassadors,  other  ininisters  and  consuls,  and  those  in 
which  a  stale  shall  he  a  party,  the  supreme  court  sJiaJl  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned,  the  supreme 
court  shall  have  appellate  jurisdiction,  1)oth  ns  (o  law  and  fact,  witli 


§    2  JURISDICTION  TO  ISSUE  THE  WRIT.  6l/ 

such  exceptions  and  under  such  regulations  as  the  Congress  shall 
make."  Then  Congress  passed  the  act  to  establish  the  judicial  courts 
of  the  United  States,  and  in  the  thirteenth  section  of  it  declared  that 
the  Supreme  Court  shall  have  exclusively  all  such  jurisdiction  of 
suits  pending  or  proceedings  against  ambassadors  or  other  public 
ministers  or  their  domestics  or  their  domestic  servants  as  a  court  of 
law  can  have  or  exercise  consistently  unth  the  lazv  of  nations,  and 
original,  but  not  exclusive  jurisdiction,  of  suits  brought  by  aml>assa- 
dors,  or  other  public  ministers,  or  in  which  a  consul  or  a  vice 
counsel  shall  be  a  party.  In  the  same  section,  the  supreme  court 
is  declared  to  have  appellate  jurisdiction  in  cases  hereinafter  ex- 
pressly provided.  In  this  section,  it  will  be  perceived,  that  the 
jurisdiction  given,  besides  that  which  is  mentioned  in  the  preceding 
part  of  the  section  is  an  exclusive  jurisdiction  of  suits  or  proceedings 
against  ambassadors  or  other  public  ministers  or  their  domestics 
or  domestic  servants,  as  a  court  of  law  can  have  or  exercise  con- 
sistently with  the  laws  of  nations  and  original  but  not  exclusive 
jurisdiction  of  all  suits  brought  by  ambassadors  or  other  public  min- 
isters, or  in  which  a  consul  or  vice-consul  shall  be  a  party,  thus 
guarding  him  from  all  other  judicial  interference,  and  giving 
to  them  the  right  to  prosecute  for  their  own  benefit  in  the  courts 
of  the  United  States.  Thus  substantially  reaffirming  the  constitution- 
al declaration,  that  the  supreme  court  had  jurisdiction  in  all  cases 
afifecting  ambassadors  and  other  public  ministers  and  consuls,  and 
those  in  which  a  state  shall  be  a  party,  and  that  it  shall  have  appellate 
jurisdiction  in  all  other  cases  before  mentioned,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regulations  as  tlie  con- 
gress shall  make. 

The  appellate  powers  of  the  supreme  court,  as  granted  by  the 
constitution,  are  limited  and  regulated  by  the  acts  of  Congress, 
and  must  be  exercised  subject  to,  the  exceptions  and  regulations  made 
by  Congress.  In  other  words,  the  petition  before  us,  we  think  not  to 
be  within  the  letter  or  spirit  of  the  grants  of  appellate  jurisdiction 
to  the  supreme  court.  It  is  not  in  law  or  equity  in  the  meaning 
of  those  terms  as  used  in  the  third  article  of  the  constitution. 
Nor  is  a  military  commission  a  court  within  the  mea:ning  of  the 
14th  section  of  the  Judiciary  act  of  1789.  That  act  is  denomi- 
nated to  be  one  to  establish  the  judicial  courts  of  the  United 
States,  and  the  fourteenth  section  declares  that  all  the  "be- 
fore mentioned  courts,"  of  the  United  States  shall  have  the  power 
to  issue  writs  of  scire  facias,  habeas  corpus,  and  all  other  writs 
not  specially  provided  for  by  statute,  which  may  be  necessary  for 
the  exercise  of  their  respective  jurisdictions,  agreeably  to  the  prin- 
ciples and  usages  of  law.  The  words  in  the  section^  "the  before- 
mentioned  courts"  can  only  have  reference  to  such  courts  as  were 
established  in  the  preceding  part  of  the  act,  and  excludes  the  idea 
that  the  court  of  military  commission  can  be  one  of  them. 


6l8  EX  PARTE  VALLANDIGHAM.  §    2 

Whatever  may  be  the  force  of  \'allandighanVs  protest,  that  he 
was  not  triable  by  a  court  of  mihtary  commission,  it  is  certain  that 
his  petition  cannot  be  brought  within  the  14th  section  of  the  act; 
and  further,  that  the  court  cannot,  without  disregarding  its  fre- 
quent decisions  and  interpretation  of  the  constitution  in  respect  to  its 
judicial  power,  originate  a  writ  of  certiorari  to  review  or  pro- 
nounce any  opinion  upon  the  proceedings  of  a  military  commission. 
It  was  natural  before  the  sections  of  the  third  article  of  the  con- 
stitution had  been  fully  considered  in  connection  with  the  leg- 
islation of  Congress,  giving  to  the  courts  of  the  United  States 
power  to  issue  writs  of  habeas  corpus,  scire  facias,  and  all  other 
writs  not  specially  provided  for  by  statute,  which  might  be  necessa^y 
for  the  exercise  of  their  respective  jurisdiction,  that  by  some  mem- 
bers of  the  profession  it  should  have  been  thought,  and  some  of  the 
early  judges  of  the  supreme  court  also,,  that  the  14th  section  of 
the  act  of  September  24th,  1789,  gave  to  this  court  the  right 
to  originate  processes  of  habeas  corpus  ad  subjiciendum,  writs 
of  certiorari  to  review  the  proceedings  of  the  inferior  courts 
as  a  matter  of  original  jurisdiction,  without  being  in  any  way  re- 
stricted by  the  constitutional  limitation,  that  in  all  cases  affecting  am- 
bassadors, other  public  ministers  and  consuls,  and  those  in  which 
a  state  shall  be  a  party,  the  supreme  court  shall  have  original  juris- 
diction. This  limitation  has  always  been  thought  restrictive  of  any 
other  original  jurisdiction.  The  rule  of  construction  of  the  consti- 
tution beiui^,  that  aftirniative  words  in  the  constitution,  declariuii 
in  zuhat  cases  the  supreme  court  shall  have  original  jurisdiction, 
must  be  construed  negatively  as  to  all  other  cases.  The  nature 
and  extent  of  the  court's  appellate  jurisdiction  and  its  want  of  it 
to  issue  writs  of  habeas  corpus  ad  subjiciendum  have  been  fully 
discussed  by  this  court  at  different  times.     *     *     * 

In  the  case  of  Ex  parte  Milburn,  9  Peters,  704,  Chief  Justice  Mar- 
shall said,  as  the  jurisdiction  of  the  supreme  court  is  appellate,  it 
must  first  be  shown  that  it  has  the  power  to  issue  a  habeas  corpus. 
In  re  Kaine,  14  TTow.  103,  the  court  denied  the  motion,  saying  that 
the  court's  jurisdiction  to  award  the  writ  was  appellative,  and 
that  the  case  had  not  been  so  presented  to  it,  and  for  the  same 
cause  refused  to  issue  a  writ  of  certiorari,  which  in  the  course  of 
the  argument,  was  prayed  for.  In  Ex  parte  Metzger,  5  How.  176, 
it  was  determined  that  a  writ  of  certiorari  could  not  be  allowed  to  ex- 
amine a  commitment  by  a  district  judge,  under  the  treaty  between  the 
United  States  and  France,  for  the  reason  that  the  judge  exercised 
a  special  authority,  and  that  no  provision  had  been  made  for  the 
revision  of  his  judgment.  So  docs  a  court  of  military  cowimission 
exorcise  a  special  authority.  In  the  case  before  us,  it  was  urged  that 
the  decision  in  Metzger's  case  had  been  made  upon  the  ground  that 
the  proceeding  of  the  district  juflge  was  not  judicial  in  its  charac- 
ter, but  that  the  proceedings  of  the  military  commission  were  so; 


§    2  JURISDICTION  TO  ISSUE  THE  WRIT.  619 

and  further,  it  was  said  that  the  ruhng-  in  that  case  had  been  overruled 
by  a  majority  of  the  judges  in  Raines'  case.  There  is  a  misappre- 
hension of  the  report  of  the  latter  case,  and  as  to  the  judicial  character 
of  the  proceedings  of  the  military  commission,  we  cite  what  was 
said  by  this  court  in  the  case  of  the  United  States  v.  Ferriera,  13 
How.  48. 

"The  powers  conferred  by  Congress  upon  the  District  Judge 
and  the  secretary  are  judicial  in  their  nature,  for  judgment  and  dis- 
cretion must  be  exercised  by  both  of  them,  but  it  is  not  judicial  in 
either  case,  in  the  sense  in  which  judicial  power  is  granted  to  the 
courts  of  the  United  States."  Nor  can  it  be  said  that  the  authority 
to  be  exercised  by  a  military  commission  is  judicial  in  that  sense. 
It  involves  discretion  to  examine,  to  decide  and  sentence,  but  there 
is  no  original  jurisdiction  in  the  supreme  court  to  issue  a  writ 
of  habeas  corpus  ad  siibjiciciidiiiii  to  review  or  reverse  its  proceed- 
ings, or  the  writ  of  certiorari  to  revise  the  proceedings  of  a  military 
commission. 

And  as  to  the  President's  action  in  such  matters,  and  those  acting 
under  his  authority  in  them,  we  refer  to  the  opinions  expressed  by 
this  court,  in  the  cases  of  IMartin  v.  Mott,  12  Wheaton  28  and 
Dynes  v.  Hoover,  20  How.  65. 

For  the  reasons  given  our  judgment  is,  that  the  writ  of  certiorari 
prayed  for  to  revise  and  review  the  proceedings  of  the  military 
commission,  by  which  Clement  L,  Vallandigham  was  tried,  sen- 
tenced and  imprisoned,  must  be  denied,  and  so  we  order  accordingly. 

Certiorari  refused. 

Under  the  act  of  Congress  organizing  the  Court  of  Appeals,  provision 
is  made  for  review  of  decisions  in  said  courts  by  certiorari  from  the 
Supreme  Court.  So  also  of  the  judgments  of  the  Court  of  Appeals  of 
the   District  of  Columbia. 

The  writ  has  often  been  issued  by  the  United  States  Supreme  Court 
in    aid   of   its   appellate   jurisdiction. 


Note  to 

WASHINGTON  AND  RERESFORD  v.  HUGER. 

1794.     Court  of  Chancery  of  South  Carolina,     i  Desaussure 

361. 

This  case  being  dependent  in  the  court  of  chancery  of  South  Car- 
olina,  i\lr.  HaiTrttton,  I 'ritish  Ccmsvil  at  Xdrfolk,  and  a  creditor  of  the 
fate  Benj.  hluger~who  had  forced  the  sale  of  the  Richmond  land, 
'pelUling  this  STtit,-  and  had  become  the  purchaser,"  petitioned  the 
Trmrt.  to  beTet  in  to  protect  his  rights;  and  he  was  allowed  to  come 
m  as  a  pa:ft>''  to  the  proceedings.    Afterwards,  and  before  the  trial 


620  WASHINGTON    AND    BERESFORD    V.    HUGER.  §    2 

oi  the  cause  he  obtained  a  C(2j-lwrarl_^ho\\\  the  .circuit  court  of  tlie: 
,'L'nit'ed  States  toTembve  this  cause  from  this  court  to  the  circuit  coiirj. 
of  the  United  States.  This  wrjt  was  served  on  the  court,  and^  after 
time  taken  to  dehberate,  the  courTrglus^lcro^ey  tEe  ceytiorari  ajj± 
gave  the  following  reasons  for  its  determitiation^By  the  Court.  The 
'suTt~"pending  in  the  court  is  between"crtizens.  An  ahen  apphes  by 
petition  to  be  ahowed  to  come  in  and  defend  his  interests.  This  was 
granted.  Since  which  he  has  applied  for  a  certiorari  to  remove  the 
cause  up  to  the  circuit  court  of  the  United  States.  A  writ  of  certio- 
rari is  a  writ  issued  by  a  superior  to  an  inferior  jurisdiction/' com-' 
manding  the  removal  of  the  cause  from  the  latter  to  the  former 
court.  But  this  is  not  an  inferior  court  to  that  from  whence  the 
mandate  issues.  No  law  of  the  United  States  declares  it  inferior 
or  impeaches  its  equality.  All  that  the  judiciary  act  of  Congress 
provides  for,  is,  to  give  a  party  defendant,  who  is  not  a  citizen  of  the 
state  where  the  suit  is  instituted,  a  right  to  apply  by  petition  to 
this  court  to  have  the  cause  removed  into  the  court  of  the  United 
States.  That  is  the  form  prescribed  and  that  excludes  other  forms 
not  provided  by  the  act.  This  does  not  warrant  the  use  of  the 
mandatory  form  of  certiorari.  But  it  is  said  that  the  power  given  to 
the  courts  of  the  United  States  to  issue  "all  other  necessary  writs," 
includes  the  use  of  this  writ  and  warrants  it.  This  is  denied.  The 
act,  of  _Congress  has  previously  pointed  out  the  moclc  of  ]ir('CL'o<l- 
ing  for  the  removal  of  a  cause  from  this  court  to  the  court  of  the 
United  States,  which  has  jurisdiction,  viz.  l)y  filing  a  petition 
on  entering  the  ai:>plication  for  the  rcni(>\al  of  the  caused  Tt  could 
not  be  intended" that  the  sariic  purpose  might  be  cllccted  by  a  to- 
tally difiPerent  process,  under  a  few  general  and  loose  words  in  an- 
other part  of  the  act.  The  court  acts  under  the  sanction  of  an  oath 
to  obey  the  laws  of  the  L^nited  States  as  well  as  those  of  the  state 
under  whose  authority  the  court  sits  and  acts.  ,  Looking-to  those 
laws,  the  court  is  of  opinion,  that  the  writ  of  certi^mrij^ncm  pre- 
sented, is  hot"  ■warranted  by  the  words  ofTTie~act  of  congres"s7"oV 
by  any  reasonable  construction  of  them.  The  court  is  not  there- 
fore bound  to  pay  any  attention  to- it.  Nor  would  the  court  have 
obeyed  the  writ  of  certiorari,  if  it  had  been  issued  by  the  supreme 
court  of  the  United  States,  to  remove  the  cause  thither,  because  that 
cf)urt  has  only  appellate  jurisdiction  (see  226  section  of  the  judi- 
ciary act)  after  final  decrees  and  judgments,  in  cases  determined 
in  tlie  circuit  courts,  brought  there  by  original  process,  or  removed 
there  from  the  courts  of  the  .several  states,  or  by  appeal  from  the 
district  courts.  And  the  supreme  court  has  no  appellate  jurisdic- 
tifju  in  cases  determinable  in  the  state  courts,  between  citizens  of  the 
sanic  state,  cxcci)t  in  the  case  of  title  to  land,  where  the  parties, 
thf)ngli  citizens  of  the  same  state,  derive  title  under  grants  from  dif- 
ferent .states. 


%    2  JURISDICTION  TO  ISSUE  THE  WRIT.  621 

The  act  of  congress  directs,  that  where  a  suit  is  commenced 
in  a  state  court,  by  a  citizen  of  that  state,  against  an  ahen  or 
a  citizen  of  another  state,  on  the  defendant's  entering  his  appeal, 
filing  his  petition,  and  offering  security,  on  the  first  day  of  the 
term,  the  state  court  shall  proceed  no  further  in  the  cause.  JThe 
present  party  has  not  pursued  the  course  prescribed  by  lawj 
lie^Taniot  applied  by 'petTtion,  nor  ofTe'recr  "security— tlie  court  will 
therefore  pay  no~regarJ 'to  the  unauthorized  course  he  pursued, 
of  obtaining  a  certiorari;  but  will  proceed  with  the  cause  under 
rjn^^]^ra'tlQii-:!La  iKe"fa  w  of  the  State  authorizes. 

ft  appears  by  a  note  of  Chancellor  Matthews,  on  his  brief,  that  in 
some  shape  this  question  was  discussed  before  the  federal  court, 
and  that  "the  federal  court  on  the  appeal  to  them  determined  that 
Hamilton,  having  appeared  in  this  court,  by  his  petition  (to  be  heard) 
has  made  his  election  into  what  court  he  would  go ;  and  having  ac- 
knowledged the  jurisdiction  of  this  court,  that  (the  federal  court) 
would  not  take  cognizance  of  the  cause." 


3.     State  courts. 

a.     Supreme  Courts. 

WHITEHEAD  v.  GRAY  et  al. 

1830.     Supreme  Court  of  New  Jersey.     12  N.  J.  36 ;  supra  p.  595. 


COMMONWEALTH  v.  BALPH. 

1886.     Supreme  Court  of  Pennsylvania,     hi  Pa.  St.  365  ;  3  Atl. 
220.     Supra  p.  607 


FARMINGTON  RIVER  WATER  POWER  CO.  v.  COUNTY 
COMMISSIONERS. 

1873.     Supreme  Judicial  Court  of  Massachusetts.     112  Mass. 

206  ;  supra  p.  539. 


STATE  v.  SWEPSON. 

1880.     Supreme  Court  of  North  Carolina.     83  N.  C.  584. 

DiLLARD,  J. — A  motion  was  made  in  this  case  at  August  term, 
1879,  of  Wake  superior  coTitTto  amend  the  record  of  the  minute 
doc^  of  Spring  tenn,  1875,  so  as  to  show  diat_defendajit__Sw^son, 


622  STATE   V.    SW EPSON.  §    2 

was  not  present  at  the  time  of  the  trial,  verdict  and  judgment,  theja 
";and  there  had  in  the  case,  and  the  judge  presiding  refused  to  hear 
evicTence  as  to  the  proposed  amendment  or  to  allow  the  same  on  the 
ground  of  want  of  power,  and  from  that  judgment  the  solicitor  for 
the  state  appealed  to  this  court. 

That  appeal  was  held  unauthorized  and  the  same  dismissed  for 
reasons  set  forth  in  the  opinion  reported  in  the  case,  State  v. 
Swepson,  82  N.  C.  541,  and  thereupon  the  present  application  was 
made  for  a  writ  of  certiorari  to  remove  the  said  record  and  proceed- 
ings on  the  motion  to  amend  in  said  cause  into  this  court,  for  such 
action  thereon  as  by  law  may  be  authorized.  So  the  only  question  for 
our  consideration  in  this  petition  is  as  to  th^  right  of  the  state 
to  have  the  writ  prayed  for  as  a  substitute  for  an  appeal,  or  as  a 
remedial  writ  by  which  to  enable  this  court  to  supervise  and  rule 
upon  the  decision  of  the  superior  court  to  entertain  the  motion 
to  amend  the  record  on  the  ground  of  a  want  of  power. 

The  jurisdiction  of  the  court  is  appellate,  extending^  to  a  review 
of  the  errors  of  law  apparent  on  the  record  of  the  judgments 
of  the  superior  courts ;  and  it  is  original  as  advisory  in  claims 
against  the  state,  in  petitions  to  rehear  its  own  judgment,  and  in 
the  supervision  and  control  of  inferior  courts.  And  the  mode  by 
which  its  appellate  jurisdiction  is  called  into  exercise,  is  by  appeal, 
which  is  regulated  by  statute,  and  is  in  the  place  of  the  writ  of 
error  from  the  king's  bench  at  law  and  appeal  in  chancery  under 
the  English  system ;  while  in  its  original  jurisdiction,  the  mode 
is,  in  claims  against  the  state  as  prescribed  in  the  statute,  in  peti- 
tions to  rehear  as  prescribed  by  the  rules  of  the  court,  and  in  the 
supervision  and  control  of  the  proceedings  of  inferior  courts  by 
any  remedial  writs  necessary  to  that  end  as  prescribed  in  the  con- 
stitution.    Art.  IV,  §  8. 

In  this  state  in  criminal  actions,  the  defendant  may  in  all  cases 
appeal  and  have  the  judgment  against  him  reviewed  for  errors 
of.  law  apparent  on  the  record,  or  assignable  on  the  statements 
of  the  case  of  appeal,  which  is  in  lieu  of  a  bill  of  exceptions;  and 
so  may  the  state  appeal^  but  the  right  in  the  case  of  the  state  Js 
wTrhoiif  anv  bill  of  exceptions,  and  is  re'slrtcfcct  1>y  The  decisions 
of  this  court  to  errors  of  law  on'TtT^'face  of  the  judgments  adverse 
to  the  state  on  demurrer  to  the  indictment,  or  <m  motion  to  '|ii;.-li, 
or  in  arfes't  or  on  a  special  verdict.  State  v.  Swepson,  8j  .\.  C. 
541;  State  V.  Lane,  78  N.  C.  547;  State  v.  Bobbitt,  70  N.  C.  81; 
Slate  v.  Padgett,  82  N.  C.  544.  And  in  cases  of  ajppeal  l^twith- 
ont  laches,  the  accused  in  all  cases,  and  tlie  slate jn^tl^jcslancp 
aforesaid,  mav  havc  a  writ  of  certiorari  from  this  court  as^asub- 
stitnte  for  an  appeal. 

From  these  established  rights  respectively  of  the  state  and  de- 
fendant, it  results  the  judgment  sought  to  Jjfi  amended  being  one 


§    2  JURISDICTION  TO  ISSUE  THE  WRIT.  623 

in   favor  of  defendant  on  a  trial  and  verdict  of  a  jury,  that  J^ie 
case  was  not  one  of  those  in  which  our  decisions  allow  a  right  of 
appeal  to  the  state,  either  from  the  original  judgment  or  that  of 
tefrrea-l'  to   entertain   a   motion   of  amendment   of   the   record   and 
therefore   no  appeal  lay   for  the   state.      But  whether  a   certiorari 
may  he  issued  in  such  cases  to  hring  up  the  recorcTTor  our  review 
"ofliTe-nrTginnl  judgment  as  on  a  writ  of  error  it  is  not  necessary- 
tb   determine,   as   we   are   of   opinion   that   the    case   presented   on 
fhe  pctitiiin,  under  consideration,  the  writ  must  be  ordered  upon 
a~cIisUnct  ground  which  will  appear  upon  a  further  discussion  of 
the  case. 

•  The  court  of  King's  Bench  in  England  always  had  a  superin- 
ten(Trm-\  i)f  the  inferinr  courts,  moving  them  to  exercise  their 
pTTTper  jurisdiction  or  withholding  them  from  exceeding  it,  or 
reversing  their  judgments,  aml^^^as  a  nieans  by  which  to  exert  such 
supervision__and^  control,  various  remedial  writs  were,  used,  and 
among  tHem  the  certiorari  in  all  cases  to  remove  the  proceedings  from 
an  inferior_.cQjLtrt  of  record  into  that  court;  for  otherwise  it  would 
have  nothing  to  act  upon,  and  the  proceedings  when  certified  up 
were  the  basis  of  an  action  for  a  procedendo,  prohibition,  mandamus, 
or  reversal  for  error  of  law,  treating  the  certiorari  in  the  last  case 
as  in  the  nature  of  a  writ  of  error.  3  Blackstone  109  to  113,  41 
to  43 ;  and  4  ibid..  3392 ;  2  Chitty's  Prac,  353,  354 ;  i  Tidd's  Prac. 
397'  398.  400,  and  715. 

This  superintending  power  of  the  king's  bench  rested  on  the  idea 
of  necessity  of  such  an  authority  to  an  orderly  exercise  of  juris- 
diction by  all  the  inferior  courts  within  their  prescribed  limits, 
and  to  a  uniformity  in  the  administration  of  the  law;  and  such 
its  power  was  ofteii  referred  to  in  our  state,  and  a  similar  power 
was  admitted  to  exist  in  our  supreme  court.  With  us  it  was  held 
in  divers  cases  that  the  superior  court  in  the  exercise  of  supervision 
and  control  over  other  courts  inferior  to  itself,  had  the  right  to 
employ  the  writ  of  recordari  or  certiorari  according  to  the  char- 
acter of  the  court  whence  the  proceedings  were  to  be  removed, 
the  same  being  ordinarily  used  as  substitutes  for  appeal,  but  capable 
of  being  used  the  first,  in  some  cases  as  a  writ  of  false  judgment, 
and  the  latter  as  in  the  nature  of  a  writ  of  error,  especially  where 
the  writ  of  appeal  was  not  expressly  denied,  but  simply  not  pro- 
vided for,  among  which  cases  may  be  cited  the  following:  Brooks 
v.  Morgan,  5  Ired,  484,  485;  Hartsfield  v.  Jones,  4  Jones  310: 
Parker  v.  Gilreath,  6  Ired.  221;  Webb  v.  Durham.  7  Ired.  130: 
Leatherwood  v.  Moody,  3  Ired.  129. 

In  the  case  of  Brooks  v.  Morgan,  Chief  Justice  Rufiin,  speaking 
for  tfie  court,  acT^nowledged  llu'  sujicrior  courts  to  have  always 
"exerci'?efr'a"supcrA-isi6ii"and  control  here,  as  did  the  king's  bench 
ifr  England,  and  pronounced  the  existence  of  such  a  power  as  es- 


624  STATE   V.    SWEPSON.  §    2 

sential  wherever  law  was  the  true  and  only  standard  of  justice, 
besides  being  necessary  to  a  uniform  and  regular  administration 
of  the  law.  And  the  court  there  held  that  in  order  to  the  correc- 
tion  of  errors  of  law  in  the  proceedings  of  the  inftrinr  courts, 
the  writ  of  certiorari  was  the  proper  means  to  be  used. 

In  the  case  of  State  v.  Swepson,  8i  X.  C.  571.  removed  from 
Wake  to  Franklin,  the  judge  held  that  the  case  was  not  at  issue 
before  its  removal  and  ordered  it  to  be  remanded  to  Wake  county, 
and  no  right  of  appeal  from  that  order  existing  for  the  state,  the 
proceedings  were  brought  into  this  court  on  certiorari,  and  we 
held  the  case  to  have  been  at  issue  and  reversed  the  ruling  in  the 
superior  court.  And  but  for  the  existence  of  the  power  of  super- 
vision in  that  case,  the  order  of  removal  being  sufficient  to  put 
the  case  out  of  Wake  court,  and  the  court  in  Franklin  County 
having  refused  to  proceed  in  it,  there  would  have  been  a^  total 
failure  of  the  prosecution  without  a  trial  anywhere. 

Such  a  power  of  supervision  and  control  perhaps  exists  in  the 
superior  courts  under  our  present  system  in  respect  to  the  courts 
inferior  to  them,  but  certainly  it  exists  in  this  court  by  express 
grant  as  contained  in  our  constitution  (Art.  IV,  §  8),  w'herein  it 
is  provided  th.at  besides  the  appellate  powers  of  the  court,  it  shall 
have  power  to  issue  any  remedial  w'rits  necessary  to  its  super- 
vision and  control  of  the  proceedings  in  the  inferior  courts. 

Thus  it  would  seem  indisputable  that  the  court  has  the  power 
to  supervise  and  control  the  proceedings  in  the  superior  courts, 
and  to  that  end  may  issue  any  writs  necessary  and  proper,  of  wdiich 
the  v;rit  of  certiorari  is  the  appropriate  one  as  we  have  seen. 

'J'lie  ;j;n\\ance  in  this  case  is,  that  on  a  motion  by  the  state, 
to  amend  the  record  of  the  trial,  verdict  and  ]u7Tgnient~3LJtlic 
superior  court  of  Wake  at  August  term  1.875,  i"  the  case  of  the 
State  V.  Swepson,  the  judge  refused  to  hear  evidence  in  support 
of  the  proposed  amendment  on  the  ground  of  want  of  power^  and 
thereupon  the  only  question  is,  was  tlu'  refusal  to  entertain  the 
motion  for  the  reason  alleged  such  an  wvtv  as  to  reffwir-e cor- 
rection in  the  exercise  of  the  supervisory  power  conferee!  on  this 
court,  and  is  the  writ  of  certiorari  a  fit  and  proper  writ  to  be 
issued?           _, 

Of  the  pcjwer  of  the  superior  court  of  Wake,  and  indeed  of  any 
court,  to  amend  its  records  and  for  that  purpose  to  hear  evidence, 
and  thereupon  to  so  amend  the  record  as  to  make  it  speak  the 
truth,  there  can  be  no  doubt.  State  v.  King,  5  Ired.  203 ;  State 
v.  Davis,  80  N.  C.  384;  State  v.  Craton,  6  Ired.  164;  State  v.  Reid, 
I  Dev.  &  r>at.  377,  and  other  cases.  l*.ut  it  is  equally  well  estab- 
lished that  the  i)ropricty  of  an  amendment  and  the  particulars 
wherein  it  is  to  be'  amended  are  matters  discretionai^y  with  the 
judge,  and  if  in  the  exercise  of  his  discretion,  the  amendment  is 


§    2  JURISDICTION'  TO  ISSUE  THE  WRIT.  625 

refused,  then  no  appeal  nor  certiorari  in  the  nature  of  a  writ  of^ 
ferror"hes  to  review  the  judgment.  Stephenson  v.  Stephenson,  4 
Jones  472 ;  Brig-ht  v.  Sugg,  4  Dev.  492 ;  Winslow  v.  Anderson, 
3  Dev.  &  Bat. '9;  Anders  v.  Mereditli,  4  Dev.  &  Bat.  199;  and 
Freeman  v.  ]\Torris,  Busb.  287. 

Jf  however  the  judge  refuse  to  entertain  a  motion  to  amend 
and  to  hear  the  evidence  on  the  ground  of  a  want  of  [xjwer,  then 
ft^'^f tills  to  exercise  his  discretion,  and  therein  a  question  of  law 
fs'made,  wliicli  is  reviewable  on  appeal  where  that  is  allowed ;  and 
ifr  state  cases  where  no  appeal  is  allowed  it  is  an  error  which  may 
be  brought  up  and  reviewed  in  the  exercise  of  the  supervisor}' 
power  of  this  court  by  a  writ  of  certiorari,  as  was  done  in  the  case 
of  State  V.  Swepson,  81  N.  C.  571. 

It  is  our  opinion,  taking  the  facts  stated  in  the  petition  to  be 
true,  there  was  error  in  the  refusal  of  the  judge,  on  the  ground 
of  want  of  power,  to  entertain  the  motion  of  the  state  to  amend 
the  record,  and  being  satisfied  of  our  jurisdiction  to  have  the  record 
certified  into  this  court  for  supervision  by  us,  it  is  ordered  that 
the  writ  of  certiorari  prayed  for  be  issued  returnable  to~"the  next 
term  of  this  court. 

Fer  curiam.    Motion  allowed. 

For  a  careful  summary  of  the  constitutional  and  statutory  provisions 
in  the  various  states  respecting  the  jurisdiction  of  the  supreme  courts, 
see  4  Enc.  of  PI.  &  Pr.   15  ff. 

In  Connecticut  the  writ  of  certiorari  seems  rarely  if  ever  issued. 
Williams  v.    Hartford  &c.   R.   Co.,    13   Conn.    no. 

In  Michigan  and  Missouri  the  Supreme  Court  will  refuse  the  writ  when 
the  same  can  be  sought  for  and  obtained  from  a  lower  court.  White 
V.   Boyce,  88  Mich.   349;    State  v.   Cooper   Co.,  64   Mo.    170. 


b.     Lower  courts  of  original  jurisdicton. 

SWIFT.  Recorder,  etc..  v.  WAYNE  CIRCUIT  JUDGES. 

1887.     Supreme  Court  of  Michigan.     64  Mich.  479;  31  N.  W. 
434.     Supra  p.  569. 


In  some  of  the  states  power  to  issue  the  writ  has  by  statute  been 
conferred  ITpon'  such  inferior  tribunals  and  officers  as  probate  courts, 
coSffEy  courts,  justice  courts,  circuit  court  commissioners,  circuit  and 
district   court   clerks,   etc. 

While  at  common  law  the  writ  could  not  be  granted  at  chambers  or  in 
vacatiou. because  it  was  not  a  writ  of  right  but  dependent  upon  the  dis- 
cretion of  the  court,  in  a  number  of  states,  however,  this  rule  has  been 
altered  either,  by   statute  or  the   rules  of  practice. 

"In  California  the  right  to  issue  the  writ  in  vacation  or  at  chambers  is 
expressly  denied  by  statute.     Cal.  Code,  Civ.  Proc.  §  165. 


626  STARKWEATHER    V.    SEELEY.  §    3 

Section  3.— "The  Parties." 

I.     Plaintiff. 

STARKWEATHER  v.  SEELEY. 

1865.     Supreme  Court  of  New  York,     45   Barbour   164. 

By  the  court,  Johnson,  J. — The  defendant  has  not  sued  out 
the  certiorari  in  this  case,  and  does  not  appear.  For  aught  that 
appears,  he  acquiesces  in  the  determination  of  the  county  judge 
in  the  proceedings  before  him,  and  such  is  the  presumption  of  law. 
The  certiorari  is  brought  by  one  Silas  Leonard,  who  was  not  a 
party  to  the  proceedings  before  the  county  judge,. and  who,  as 
appears  from  the  case  before  us,  had  no  notice  of  them  whatsoever 
until  he  was  dispossessed,  by  the  officer  who  executed  the  war- 
rant issued  by  the  judge,  of  .the,  premises,  and  the  plaintiff  put  in 
possession.  The  proceedings  were  all  against  the  defendant,  as 
t1ie'ten"aht  of  file  plaintiff,  holding  over,  arid  continmrig  in  pos- 
session, after  the  expiration  of  the  term  created  by  his  lease.  It 
would  seem  from  the  affidavit  on  which  the  writ  of  certiorari  was 
allowed,  that  Leonard  was  in  the  possession  of  the  premises  and 
had  a  contract  to  purchase  them  from  the  alleged  tenant  Seeley. 
The  contract  is  set  out  in  full,  but  does  not  in  terms  give  to  Leonard 
the  right  of  possession  of  the  premises.  The  matters  stated  in  the 
affidavit,  however,  on  which  the  writ  was  allowed,  are  no  part 
of  the  record,  and  cannot  be  noticed  for  the  purpose  of  deter- 
mining either  the  regularity  or  the  validity  of  the  proceedings  be- 
fore the  county  judge.  The  record  is  the  return  of  the  county 
judge,  and  it  is  by  that  alone  that  the  proceedings  before  him 
must  stand  or  fall.  According  to  the  return,  the  proceedings  before 
the  county  judge  appear  to  have  been  all  regularT""  The  proper 
affidavit  was  made  to  give  the  judge  jurisdiction  to  issue  the  sum- 
mons. The  summons  was  regularly  issued  and  served  upon  the 
party  against  whom  it  was  directed,  and  duly  returned.  At  the 
return  day,  or  the  time  appointed  in  the  sunimons  for  stiSWing 
cause,  no  one  appeared  to  show  cause,  whereupon  the  judge,  as 
required  by  statute,  issued  his  warrant  in  the  form  which  the  statiite 
prescribes,  commanding  the  officer  "to  remove  all  persons,  from 
the  said  premises  and  to  put  the  said  applicant  to  the  magistrate 
into  the  full  possession  thereof."  (2  R.  S.  5r47T"l)"30  Tt  appears 
by  the  return  of  the  officer  who  executed  the  warrant  that  he  had 
executed  it  by  nutting  the  jilaintiff  into  possession,  and  by  dispossess- 
ing Silas  Leonard,  and  all  f)lher  persons  whom  he  found  in  pos- 
session. This  is  all  we  can  gather  from  the  return,  as  to  any  connec- 
tion of  Leonard  with  the  premises,  in  any  way  whatever.    And  look- 


§    3  'i'ilE   PARTIES.  627 

ing  to  the  return  alone,  without  aiiy  reference  to  Leonard's  affi- 
davit, no  error  appears  in  the  proceedings.  There  was  nothing 
before  the  judge  to  show,  or  suggest  the  idea,  that  anyone  but 
Seeley  was  in  possession,  or  claimed  any  right  thereto,  and  the 
record  shows  nothing  different.  It  is  only  by  the  extrinsic  facts 
which  appear  in  the  affidavit,  and  which  were  not  before  the  judge, 
that  any  error  is  made  to  appear.  And  these,  as  before  suggested, 
cannot  be  accepted  as  facts  for  the  purpose  of  determining  the 
questions  properly  arising  here.  I  do  not  see,  therefore,  how  the 
proceedings,  which  appear  to  have  been  all  regular,  can  be  reversed 
or  quashed  by  us.  It  may  be  that  Leonard  was  wrongfully  turned 
otjF'or  possession,  or  may  not.  If  he  was,  he  has  his  remedy  in 
some  other  manner  to  recover  the  possession  of  which  he  has  been 
unlawfully  deprived.  Being  no  party  to  the  proceeding  before  the 
county  _2udge,  and  having  no  notice  of  it,  he  is  clearly  not  bound 
b'"£^jth.e  determination,  and  it  can  constitute  no  bar  to  an  action 
brought  by  him  to  recover  his  possession.  He  may  still  have  re- 
dress, though  in  another  form,  upon  making  sufficient  proof  of  his 
rights,  on  the  trial  of  his  action. 

It  is  claimed  by  the  plaintiff's  counsel  that  Leonard  has  no  right 
to  the  writ  of  certiorari  to  review  the  proceedings  before  the 
county  judge,  inasmuch  as  he  was  not  there  a  party  in  form  and 
substance  having  according  to  his  own  showing  no  conventional 
relation  as  tenant  to  any  one,  and  certainly  not  to  the  plaintiff  or 
landlord  in  the  proceedings.  In  the  view  I  have  taken  of  this  case 
it  is  not  perhaps  necessary  to  decide  this-  question.  I  am  inclined 
to  the  opinion,  however,  that  the  objection  is  well  taken.  He  might 
haxe  made  himself  a  party. 

The  34th  section  of  the  statute,  above  referred  to,  authorizes 
c\ny  person  in  possession  of  the  demised  premises,  or  any  person 
claiming  possession  thereof,  at  the  time  appointed  for  showing 
cause,  to  come  in  and  file  his  affidavit  with  the  magistrate  who 
issues  the  warrant,  denying  the  facts  upon  which  the  summons 
was  issued,  or  any  of  them,  and  to  have  the  matters  thus  contro- 
verted tried  by  a  jury.  It  is  obvious  that  a  person,  though  not 
named  in  a  summons,  having  connected  himself  with  the  proceeding 
in  this  way,  might  have  his  writ  of  certiorari  to  review  the  pro- 
ceedings to  which  he  was  thus  a  party.  But  Leonard,  so  far  as 
the  record  shows,  may  have  been  a  mere  stranger  to  all  parties, 
or  a  mere  agent  or  servant  of  Seeley.  It  is  answered,  that  having 
no  notice  or  knowledge  of  the  proceeding,  it  was  impossible  for 
him  to  make  himself  a  party.  But  I  do  not  see  that  this  affects 
the  questioTi.  True,  he  has  been  dispossessed  under  the  general 
terms  of  the  warrant ;  but  his  legal  rights  are  not  concluded  or  in 
any  wise  affected  by  the  warrant,  or  the  determination  upon  which 
the  warrant  was  issued. 


628  EATH  RIDGE  &  TURNPIKE  CD.  V.    MAGOUN.  §    3 

I  think  the  true  test  as  to  the  right  of  review  is,  zvas  the  person 
seeking  to  reviezv,  a  party  in  form  or  substance  toUhe  proceeding 
sought  to  he  reinen'cd  so  as  to  be  concluded  by  the  determination 
thereof F  ILjiot,  although  his  rights  may  have  been  infringed  Ey^ 
an  improper  execution  of  the  process,  I  think  he  cannot  bring  up 
tTFie  matter  for  review.  If  my  brethren  agree  with  me  in  this  view, 
the  writ  should  be  quashed.  Proceeding  upon  the  other  view,  that 
Leonard  is  a  part}-  in  substance  and  effect,  and  has  properly  sueG 
out  this  writ  as  such,  if  no  error  appears  upon  the  record,  the 
determinations  and  proceedings  should  be  affirmed.  Such  a  deter- 
mination of  this  proceeding  might  possibly  conclude  him,  or  at 
least  embarrass  him  in  the  prosecution  of  another  remedy.  I  am 
of  the  opinion  that  the  writ  should  be  quashed,  and  Leonard  pay 
the  costs. 

Judgment  accordingly. 


BATH  RIDGE  &  TURNPIKE  CO.  v.  MAGOUN  et  als. 

1832.     Supreme  Judicial  Court  of  the  State  of  Maine. 

8  Maine  292. 

(By  private  statute  the  court  of  sessions  was  authorized  to  con- 
truct  a  county  road  from  Bath  to  P>runswick.  Said  road  was 
located  and  order  constructed  on  a  line  practically  parallel  with 
plaintiff's  toll-road,  whose  tolls  would  be  greatl\  diminished  by  the 
opening  of  said  road.  Plaintiff  petitions  for  a  writ  of  certiorari  to 
quash  the  proceedings  of  the  court  of  sessions ;  alleging,  for  errors, 
that  the  road  was  laid  over  navigable  waters,  that  the  commis- 
sioners did  not  act  under  the  authority  of  tlK'  statute,  that  the 
road  was  not  laid  from  town  to  town,  and  that  the  two  towns 
never  gave  their  consent  in  the  manner  and  form  provided  by  the 
act.) 

M ELLEN,  C.  J.,  delivered  the  oj^nion  of  the  court. 

On  insj^ection  of  the  record  of  the  location  of  the  road  described 
in  the  api)lication,  wc  entertain  no  doubt  as  to  the  irregularity 
of  the  proceeding,  on  account  of  the  non-compliance  willr  the" 
condition  of  the  act  authorizing  the  location  over  the  tide  waters 
therein  described ;  and  we  should  immediately  grant  the  writ,  as 
prayed  for,  were  vvendt  satisfied  that  we  liave  no  authority  to 
gnmt  It  on  tlie  present  petition.  From  the  facts  before  us  we  have 
no  doubt  tliat  the  marl .  the  location  of  which  is  ci^mplained  of,  if 
CfimpJeted,  wduIcI  Tmirreotly  be  essentially  iirejiidioial  to  the  priyxiti? 
interest  of  the 'corporation  ;  but  such  an  indirect  intvM-e.st  does  not 
.TTTtliAH^o  the  interposition  rif  iIh-  cnri)nr;ihiii)   i'l  lliis  mode. 


§    3  THE   PARTIES.  629 

In  some  respects  there  is  a  difference  between  a  writ  of  error 
and  a  writ  of  certiorari,  and  in  some  respects  there  is  a  strong 
resemblance.  The  former  lies  where  the  proceedings  are  accord- 
ing to  the  course  of  the  common  law ;  in  other  cases  a  certiorari  is 
the  proper  writ.  A,  writ  of  error  is  a  writ  of  right;  a  writ  of 
certiorari  is  notj^  it  is  a  matter  of  sound  discretion  to  grant  or 
reftise^ri: .  "*^li er e  are  several  other  points  of  difiference.  They  are 
alike  in  thisj  that  no  one  but  a  party  to  the  recortl^^jor  one  who 
Has  a_direct  and  immediate  interest  in  it  or  is  privy  {Hereto,  can" 
mamtain  either  of_Jhese  writs.  Porter  v*.*'"Rumery,  lo  Mass.  64. 
■StiirTey  v.  Lunenberg,  1 1  Mass.  379.  Grant  v.  Chamberlain,  4 
Mass.  611.  Haines  v.  Corliss,  ib.  659.  Glover  v.  Heath,  3  Mass. 
252.  In  the  above  cases  the  rights  and  interests  of  heirs,  devisees, 
executors,  and  administrators,  are  recognized  as  well  as  those  of 
the  original  parties ;  but  we  are  not  aware  that  those  not  having 
any  such  right  or  interests,  are  entitled  to  either  of  the  before 
mentioned  writs.  Numerous  cases  have  occurred,  and  many  are 
reported,  in  respect  to  the  location  of  roads,  etc.,  but  they  have 
always  been  prosecuted  by  those  having  a  direct,  legal,  statute 
interest  in  the  proceedings  complained  of.     As  our  laws  on   this 

-S.ubject  now  stand,  the  individuals  whose  land°^  appropriated  for 
t^road  have  a  direct  interest  of  a  pecuniary  character.  So  has 
the  county,  because  liable  by  law  to  pay  to  the-tJWner  the  estimated 
value  of  the  land  so  appropriated.  So  has  a  town,  because  by  law 
bound  to  make  the  road  and  keep  the  same  in  repair.  On  applica- 
tion for  a  certiorari  it  is  usual  to  notify  one  or  more  of  the  peti- 
^i2!2£Il§^iftt,i.he.  road,  as  being  parties  on' the  record,  ...Jn  the  case 
before  us  the  corporation  does  not  present  itself  in  either  of  the 

^abovjg...iijentiqned  characters..  It  is-..a.siranger  to  the  record  and 
has  not  any^  direct  statute  interest  in  .it.  AmT^rnufiTeT"'!?'!!!^^^^^ 
sustafinire""oT  a  remote  and  incidental  character.  Suppose  that 
by  the  location  of  a  new  road,  the  stages,  and  travellers  of  various 
kinds,  are  induced  to  leave  the  old  road  and  a  long  established  and 
profitable  hotel,  by  means  of  which  it  becomes  useless,  and  the 
owner  is  deeply  injured  in  his  property;  surely  these  circumstances 
would  not  clothe  him  with  the  rights  of  a  party  and  authorize  him 
to  prosecute  a  writ  of  certiorari  for  the  purpose  of  obtaining  a 
quashment  of  the  ]>roccedings  by  which  the  road  is  located.  For 
".he  reasons  above  given,  a 

Writ  of  certiorari  is  not  granted. 

See  also  People  v.  Mayor  of  New  York,  5  Barb.  (N.  Y.)  43;  Codding- 
ton  V.  Stanton,  _  7  N.  J.  L.  84;  Goodell  v.  Kalamazoo,  63  Mich.  416; 
Lamar  v.  Commissioners,  21  Ala.  772:  People  v.  Alort^an,  65  Barb.  (N.  Y.) 
473:  Conklin  v.  Fillmore  Go.,  13  Minn.  454;  Gushing  v.  Gay,  23  Me 
9;  Wolpert  V.  Newcomb.  106  Mich  357;  Perkins  v.  Holman,' 43  Ark 
219;    Davis   V.   Horn,  4   G.    Greene    (Ta.)    94. 


630  DEXTER   V.    TOWN    COUNCIL  OF   CUMBERLAND.  §    3 

DEXTER  V.  TOWN  COUXXIL  OF  CUMBERLAND. 
1891.  Supreme  Court  of  Rhode  Island.  17  R.  I.  222;  21  Atl.  347. 

Stiness^  J. — The  petitioner  represents  that  he  is  the  owner 
of  land  within  20oTe'et  of  the  building  for  which  the  lowii  council 
of  Curriberland  has  granted  a  license  to  sell  intoxicating  liquor. 
He  alleges  that  said  license  was  granted  without  the  notice  which 
is^equired  bv  statute,  and  also  that  the  owners  of  the  greater  part 
of  the  land  within  200  feet  of  said  building  filed  their  objections 
in  writing  to  the  granting  of  the  license.  We  do  not  find  from 
the  record  that  this  last  averment  is  sustained.  The  question, 
therefore,  arises  whether  this  petitioner  is  entitled  to  object  to  the" 
record  upon  the  ground  of  an  improper  notice ;  and  also  whether 
the  notice  given  was  so  far  short  of  the  requirement  of  the  statute 
as  to  invalidate  the  proceedings  of  the  town  council  in  granting 
the  license. 

Certiorari  Vies  not  only  to  review  the  decisions  of  inferior  courts, 
but  also  the  determinations  of  special  boards,  exercising  a  judicial 
power,  affecting  the  rights  or  property  of  citizens,  where  no  other 
legal  remedy,  is.  provided.  It  is  not  necessary  that  the  applicant 
slTould  be  a  -part}-  to  the  record,  but  only  that  he  should  be  interested 
in  the  subject  matter  upon  which  the  record  acts.  Dyer  v.  Lowell, 
30  Me.  217.  A  special  power  is  conferred  upon  town  councils  and 
license  commissioners  to  grant  licenses,  by  Pub.  Laws,  c.  816,  §  2, 
of  August  I,  1889;  but,  before  exercising  this  power,  it  is  necessary 
to  determine  whether  the  precedent  requirements  of  the  statute 
have  been  complied  with  and  also  whether  the  owners  of  a  greater 
part  of  the  land  within  200  feet  of  the  place  proposed  object  in 
writing  to  the  granting  of  such  a  license.  These  determinations 
are  of  a  judicial  nature,  upon  which  the  jurisdiction  of  the  board 
depends,  and  they  may  therefore  be  reviewed.  General  remon- 
strances appeal  only  to  the  discretion  of  the  board,  and  are  not 
reviewable.  The  owners  of  land  within  200  feet  of  a  place  pro- 
])osed  for  a  license  are  regarded  by  the  statute  as  having  such  a 
special  and  peculiar  interest,  distinct  from  that  of  the  public,  In 
the  subject  matter,  that  the  owner.',  of  a  greater  part  of  such  land 
may,  by  their  objections  in  writing,  prevent  the  grantin-  vi  a 
license  altogether.  T^  insure  this  riglit  of  objection  the  statute 
provides  that  notice  shall  be  given,  b\'  adNcrtisiiucnt  in  a  newspaper 
of  the  town,  or,  if  nr)ne,  in  a  newspaper  of  the  county,  for  at  least 
two  weeks  of  tlie  particular  location  for  which  a  license  is'  re"- 
qucsted.  We  think  the  iK-titioner  has,  tmdcf  this  statute,  such  a 
right  or  interest  in  the  subject  matter,  as  to  entitle  him  to  ap])ly 
for  this  writ.  In  Murray  v.  Supervisors,  23  <  "al.  .)«)_',  tlu-  i)lain- 
tiff,  owner  of  a   ferry   franchise  over  Mercer    Kivcr,  avtrrrd   tliat 


I    2  THE  PARTIES.  63 1 

the  board  of  supervisors,  without  the  notice  required  by  statute, 
granted  a  ferry  Hcense  to  anotlier  to  run  a  ferry  across  said  river 
about  twenty  rods  above  the  plaintiff's  place,  no  such  ferry  being 
required  b}'  public  convenience ;  that  the  reason  given  by  the  board 
in  their  niinutes  for  granting  the  license,  was  that  due  notice  of 
the  application  had  been  given,  and  no  legal  excuse  was  shown 
why  it  should  not  be  granted.  The  complaint  was  held  to  be  suffi- 
cient to  authorize  a  writ  of  certiorari.  The  case  is  hardly  distin- 
guishable from  the  case'  at  bar.  In  the  petition  of  the  Rhode 
Island  Society  for  Encouragement  of  Domestic  Industry,  for  a 
writ  of  certiorari,  filed  at  this  term,  the  court  held,  upon  a  motion 
to  dismiss,  that  an  owner  of  land  within  200  feet  was  a  proper 
party  to  prosecute  the  application ;  but  when  it  afterwards  appeared 
that  the  objections  filed  did  not  embrace  the  owners  of  a  greater 
part  of  the  land,  no  defect  of  notice  being  set  forth,  the  court  held 
that  the  petitioner  then  stood  in  no  dififerent  position  from  any 
general  remonstrant,  and,  as  such,  was  not  a  proper  party  to 
prosecute,  w^hereupon  the  motion  to  dismiss  was  granted.  In  the 
present  case  the  insufficiency  of  the  notice  is.  specially  set  fort|i. 
When  due  notice  has  been  given,  and  the  requisite  number  of 
land  owners  do  not  object  to  the  license,  it  is  then  a  matter  of 
discretion  with  the  board  whether  to  grant  a  license  or  not.  Over 
such  a  conclusion  this  court  has  no  control.  But  the  owners  of 
land  have  a  peculiar  interest  in  the  matter  of  due  notice.  If  the 
particular  location  is  not  named  as  required  by  statute,  they  have 
no  means  of  knowing  w^hether  to  object  or  not ;  their  attention 
Ts""not  directed  to  the  place  which  may  affect  them  and  to  which 
they  have  a  right  to  object.  The  omission  to  state  the  particular 
place  may  be  the  very  reason  why  the  required  number  do  not 
appear,  and  thus  they  may  be  misled,  when  otherwise  they  could 
have  prevented  a  license  at  that  place.  They  therefore  have  a 
'direct  and  special  interest  in  the  matter;  and.  as  individuals,  they 
RSVtr  Tto^Tier  remedy  than  certiorari.  A  criminal  prosecution  of 
tITe  license,  or  an  information  by  the  attorney-general,  can  hardly 
be  said  to  be  a  remedy  for  them.     *     *       * 

(The  court  held  that  the  notice  was  insufficient  and  that  the 
town  council,  therefore,  had  no  jurisdiction  to  grant  the  license ;  that 
Its  proceedings  therein  were  erroneous  and  ordered  the  same  to  be 
quashed^y        "  '  "" 


632  HOLDEN   V.   VILLAGE  COUNCIL  OF   LAMBERTON.  )5    3 

holdb:x  v.  village  council  of  lamberton. 

1887.     Supreme  Court  of  Minnesota,     ^y  Minn.  362;  34 

N.  W.  336. 

Dickinson,  J. — -\\.  is  .sought  by  means  of  the  writ  of  certiorari^ 
to  bring  here  for  review  the  alleged  unauthorized  and  illegal  action 
oTthe  village  council  of  the  village  of  Lamberton  in  recanvassing 
the  votes  cast  at  the  general  village  election  in  March,  1887, 
upon  the  question  Avhether  licenses  shall  be  granted  for  the  sale  of 
intoxicating  liquors ;  and  in  the  granting  of  such  licenses,  contrary 
to  the  vote  of  the  people  at  that  election.  It  is  alleged  in  the  petir^ 
tion,  that  the  village  council  without  any  autRonty  or  jurisdiction, 
to  do  so,  recaiivassed  the  vote  iq  June  following  the  electionj  and 
having  them  rejected,  as  illegal,  one  vote  which  has  been  cast 
"against  license"  declared  the  vote  to  be  a  tie,  and  hence  rioF'c>p£" 
posed  to  the  granting  of  licenses.  Thereupon  licenses  were  granted. 
These  facts  shown  by  the  relator's  petition  do  not,  upon  his  own 
theory  as  to  the  powers  of  the  respondents,  present  a  case  for  the 
granting;^o|^]tliS,.writ.  The  relator  claims  the  action  of  the  council 
in  recanvassing  the  votes,  and  redetermining  the  result  of  the 
election  to  have  been  wholly  without  authority  of  the  law ;  and 
the  return  more  fully  shows  this  to  have  been  the  case.  Whether 
the  council  had  authority  at  any  time,  and  as  a  part  of  the  election 
proceedings,  to  canvass  the  votes,  and  declare  the  result  of  the 
election,  we  do  not  consider.  The  act  complained  of  was  not 
such  a  proceeding.  I/pon  the  api)lication  of  certain  persons  for 
license,  some  three  monllis  after  the  election,  a  hearing  was  had 
before  the  council,  at  which  they  assumed  to  investigate  and  de- 
tcjTjiuisui.lic..LugaIity  al. .a. -.certain  vote,,  and  thereupon  to  determine^, 
tnat  the  result  of  the  election  was  dififerent  fntm  that  whicli  they 
had  before  declared.  This  was  a  mere  usur])ation  of  authority, 
and  wholly  without  legal  effect.  As  determined  in  State  v.  Maxor 
of  St.  Paul,  34  Minn.  250,  25  N.  W.  449,  the  writ  of  certiorari 
will  not  be  granted  for  the  purpose  of  reviewing  such  nugatory 
proceedings.  The  act  of  the  council  in  granting  the  license  was 
not  of  a  judicial  character, -and  therefore  will  not  be  reviewed 
under  this  writ!" 

There  is  a  further  reason  why  the  writ  should  be  quashed,  in 
that  the  relator  has  no  peculiar  interest  in  the  matter  in  question. 
It  is  not  enough  that  he  is  a  resident  and  taxpayer  in  this  village. 
In  general,  courts  zvill  not  review  and  correct  the  official  action 
of  public  officers  at  the  suit  of  priivte  individuals  zvho  have  jiq_ 
pccjtliar  inreresi  therein,  nor  will  they  be  allowed  to  sue  out  such 
7i.rits  as  this  for  that  purpose.  Conklin  v.  Commissioners  Fillmore 
Co.,  13  Minn.  454  CCil.  423)  ;  Smith  v.  Yoran,  37  la.  89;  News  Co. 


§    3  THE  PARTIES.  633 

V.  Harris,  62  la.  501,  17  X.  W.  745:  and  see  Darling  v.  JJoescli, 
67  la.  702.  704,  25  N.  W.  887. 

The  respondent's  motion  to  quash  the  writ  is  granted. 

See  also  State  v.  Heege,  37  Mo.  App.  338;  Darling  v.  Boesch,  67  la. 
702;  McCreary  v.  Rhodes,  63  Miss.  308;  Iske  v.  Newton,  54  la.  586; 
Lexington    v.    Sargent.    64    Miss.    621. 

Any  person,  a  citizen  and  taxpayer,  may  appear  as  plaintiff  to  review 
tlie"~actioa  of  taxing  boards  and  commissioners : — Orr  v.  Board  of 
Equalization,  2  Idaho  923;  Biddle  v.  Riverton,  58  N.  J.  L.  289;  People  v. 
Supervisors,  57  Barb.  ( N.  Y.)  377;  Collins  v.  Davis,  57  la.  256;  People 
V.  Morgan,  65  Barb.  (N.  Y.)  473;  Stroud  v.  Consumers'  Water  Co.,  56 
N.  J.  L.  422.     But  see  State  v.  JNliddleton,  24  N.  J.  L.  124. 


MORRIS  CANAL  &  BANKING  COMPANY  v.  THE  STATE. 
1834.     Supreme  Court  of  New  Jersey.     14  N.  J.  L,  411. 

(Certior.ari  in  the  name  of  the  state  against  Pj  S  and  C,  com- 
missioners, commandmg  them  to'certif}'  their  proceedings  touching 
ihejesTTnmte~an^  of  certain  lands,  etc.,  taken  and  occupied" 

by  plaintiff  for  the  ~pufpose^of  a  canal  between  the  Passaic  ajid 
Delawa~r^'nvefsT]r 

Hornblower.  C.  J. — It  is  objected  that  the  state  has  improperly 
been  made  a  party  to  this  suit. 

The  name  of  the  state,  cannot,  with  legal  propriety,  be  used 
upon,  every  occasion,  and  therefore  it  ought  not  to  be  introduced 
upon  the  record,  as  a  party,  at  the  mere  pleasure  of  every  person 
who  may  think  fit  to  use  it.  There  ought  to  be,  and  one  would 
think  our  books  would  furnish,  some  known  and  settled  rule  on 
the  subject ;  yet  such  has  been  the  diversity  of  practice  in  relation 
to  this  matter,  that  the  reports  afford  no  guide  to  the  profession, 
but  are  rather  calculated  to  distract  and  mislead  the  practitioner. 

Perhaps  from  the  very  nature  of  the  writ  of  certiorari  and  the  ever 
new  and  varying  occasions  for  its  use,  no  very  definite  and  precise 
rules  can  be  prescribed  in  relation  to  the  parties  in  whose  names 
as  plaintiffs,  or  against  whom  as  defendants,  it  should  be  issued 
yet  by  a  little  attention  to  general  principles,  and  legal  analogies, 
much  uncertainty  and  litigation  may  be  avoided  in  this  matter. 

In  the  State  v.  Kirby,  2  South.  835,  the  Chief  Justice  (Kirk- 
patrick)  said  "the  state  can  be  made  plaintiff  only  zvhen  the  public 
interest,  the  pii1)tir''J>eacrr~0T~ttre~~fWlic  "ofS^f  and  economy  arc 
c oncer ficc[r  Blit  it  is  easier  to  tay' down  a  general  proposition. 
tHanTo  carry  it  out  in  practice,  and  to  apply  it  to  particular 
cases.  For  instance,  it  lias  been  argued  that  the  state  is  alwavs 
interested  to  see  that  the  laws  are  obeyed,  and  properly  executed ; 


634  MORRIS  CAXAL  &  BANKING  COMPANY  V.   THE  STATE.  §    3 

and  therefore  if  corporations,  commissioners  or  other  persons,  act- 
ing under  a  particular  statute,  or  exercising  a  special  authority,- 
mistake  their  duty,  or  act  unlawfully,  the  state,  watchful  over  the 
rights  of  individuals,  and  bound  to  protect  them,  steps  in  to  the  aid 
of  the  citizen,  and  tenders  the  use  of  its  name  in  the  prosecution 
or  defence  of  those  rights.  But  the  same  course  of  argument  would 
lend  the  name  of  the  state  to  every  individual,  in  every  action, 
he  might  think  proper  ta  bring  against  any  public  officer,  or  person 
acting  under  color,  or  authority  of  law.  The  same  has  an  interest, 
in  a  political  sense,  in  everything  done  within  its  jurisdiction. 
Public  peace,  order,  security  and  economy,  are  more  or  less,  in- 
volved in  every  dispirte  and  lawsuit  that  happens.  Why  not,  then, 
lend  the  name  of  the  state  to'  every  man  who  seeks  to  enforce  a 
contract  with,  or  to  recover  damages  from,  his  neighbor  for  an 
injury  done  to  his  person  or  property?  But,  I  apprehend,  the 
state  is  never  properly  plaintiff  in  certiorari,  where  tlie  object'^^of 

•the  writ  1s  to  relieve  individuals  in  matters  affecting  their  .private 
rights ;  unless  the  proceeding*  complained  of  has  been  instituted 
and  carried  on,  by  the  state,  in  its  corporate  and  political  char- 
acter,  and    for   political    or   municipal    purposes — in    other   words, 

Jhc  iiaiiic  of  the  sfafc  caiuwt  be  used,  as  plaintiff  in  certiorari, 
except  in  those  eases  in  -n'hieJi  the  indir-iduaJ,  for  ivhose  deJiefit, 
or_jrelief,  it  is  sued  out,  eannot,  upon  lei:^al  pri)!eipJes,1?e  himself 
the  plainTifT]  or  where  the  state  orjlie  wJwle  eonunnnity  Jiave  some 
rights,  or  interests _  in  the  subject  matter;  not  speculative  or  poUf- 
ical,  but  direct  and  positive  rights  and  interests,  K'hieh  are  to  "be 
affected  one  ivay  or  the  other.  This  will  be  found  to  embrace:  an 
extensive  class  of  cases,  relating  to  the  public  peace,  the  public 
revenue,  the  public  defence,  common  and  public  hig-hways,  and 
many  other  cases  of  general  interest  and  concern.  In  short,  wher- 
ever the  authority,  or  the  interest,  of  the  state,  in  the  prosecution 
of  any  of  the  great  purposes  of  governmait  comes  into  conflict 
with  individual  rights,  and  the  state,  either  in  its  corporate  name,  or 
by  its  appropriate  agents,  is  the  actor,  in  carrying  into  execution 
those  purposes ;  then  the  name  of  the  state  may  be  used  by  an 
individual  complaining  of,  and  seeking  to  be  relieved  against  its 
proceedings.  In  such  cases,  the  state  yields  a  tacit  consent  to  be 
made  plaintiff  in  certiorari  where  that  is  the  i)ropcr  remedy,  for 
the  inir])osc  of  affording  the  citizen  an  opiKirtunity  of  being  heard 
in  this  court,  anol  having  the  error  corrected,  if  any  has  been  com- 
mitted. 

The  case  of  The  State  v.  Kirby,  2  South.  835,  is  at  once  an 
authority  for,  and  an  illustration  of,  the  rule  I  have  attempted  to 
prescribe,  'i'he  chief  justice  in  that  case,  says — "the  certiorari  is 
to  Ijc  entitled  at  the  suit  of  the  state  where  its  object  is  to  bring 
into   review,  proceedings   which   arise  ui)on   numicipal    regulations. 


§    3  THE   PARTIES.  635 

made  for  the  public  benefit,  and  public  convenience  or  the  public 
safety.  In  the  execution  of  these  regulatipns,  the  state  is  always 
the  actor,  carryiiig-  them  into  etTect,  either  in  its  ordinary  courts 
of  justice,  or  by  special  commissioners,  or  agents,  appointed  for  that 
purpose,  etc."  In  the  same  case  it  was  objected  that  Kirby,  the 
justice,  ought  not  to  have  been  styled  defendant,  but  that  the  writ 
ought  to  have  been  entitled  as  between  the  state,  plaintiff,  and  the 
person  charged  with  the  fine  and  seeking  relief,  defendant ;  and 
though  the  chief  justice  considered  it  so  much  a  matter  of  form 
as  not  to  be  fatal,  yet  he  and  Mr.  Justice  Southard,  concurred  in 
opinion  that  the  justice  was  improperly  made  defendant — that  it 
being  a  case  in  which  the  state  was  properly  plaintiff,  the  writ  ought 
to  have  been  entitled  against  the  individuals  who  were  seeking  to 
avoid  the  fines — they,  having  been  proceeded  against  by  the  state, 
as  delinquents,  could  not  turn  round  and  use  the  name  of  the  state, 
m  a  suit  against  the  justice,  or  am'body  else,  to  reverse  those 
proceedings.  So.  I  apprehend,  in  this  case,  the  certiorari  ought 
to  be  between  the  same  persons  who  were  the  parties  in  interest, 
in  the  action  below.  If  the  state,  in  its  corporate  and  political 
character,  had  anything  to  do  in  the  proceedmgs  complained  of, 
it  was  a  matter  between  the  state  on  the  one  side,  and  the  land- 
holders on  the  other.  They  cannot  change  the  nature  of  the 
controversy,  nor  the  parties  to  the  proceeding,  by  bringing  a 
certiorari;  they  cannot  involve  the  state  into  a  law  suit  with  the 
Morris  Canal  and  Banking  Company,  to  redress  an  injury  done 
to  them  by  the  latter.  The  state  has  provided  legal  tribunals,  and 
proper  forms  of  action,  in  which  its  citizens  may  protect  their 
rights,  or  redress  their  wrongs ;  but  it  will  not  consent  to  become 
the  gladiator,  or  legal  champion,  of  any  individual. 

I  do  not  mean  to  say  that  in  every  case  in  which  the  state  is 
properly  plaintiff  in  certiorari,  the  person  for  whose  benefit  the  writ 
is  issued,  must  be  styled  defendant ;  nor  do  I  understand  that  such 
Wias  the  meaning  of  the  court  in  the  State  v.  Kirby;  neither  do  I 
suppose  as  Chief  Justice  Ewing,  from  what  he  said  in  the  State  v. 
Hansford,  6  Halst.  75,  seems  to  have  thought,  that  the  court,  in 
the  former  case,  did  not  intend  to  establish  a  general  rule,  but 
only  to  decide  that,  in  that  particular  case,  the  persons  seeking 
to  avoid  the  fines  ought  to  have  been  made  defendants  in  certiorari. 
(3n  the  contrary,  it  appears  to  me  that  the  court,  in  State  v.  Kirby, 
intended  to  lay  it  down,  as  a  general  rule,  that  whenever  the 
party  seeking  relief  by  the  writ  was  the  defendant,  or  person  acted 
upon  in  the  proceeding,  below,  and  the  state  was  the  prosecutor, 
plaintiff,  or  actor,  in  the  matter,  by  its  appropriate  agents,  seeking 
to  enforce  some  penalty  or  duty,  against  the  individual;  then  the 
certiorari,  whether  issued  at  the  instance  of  the  state  or 
citizen,    is    always  to   be    entitled    as    between    the    state,    plaintiff. 


636  MORRIS  CANAL  &  BANKING  COMPANY  V.   THE  STATE.  §    3 

and  the  party  complaining,  defendant.  That  this  is  the  true  rule, 
I  think  there  can  be  no  doubt ;  it  is  in  perfect  analogy  with  the 
practice  in  other  cases.  In  all  indictments  and  criminal  proceed- 
ings, the  state  is  the  original  prosecuting  party ;  yet  in  certiorari, 
to  remove  such  proceedings,  the  state  is  plaintiff,  and  the  defendant 
below  invariably  the  defendant  in  certiorari.  So,  too,  in  England, 
certioraries  in  settlement  cases,  and  other  matters  touching  the 
poor,  are  entitled  the  King  v.  the  party  suing  out  the  writ,  and 
seeking  to  avoid  or  defeat  the  order  or  proceeding  below ;  i  Burr. 
R.  52.  This  rule  may  not  have  been  uniformly  followed  in  Eng- 
la-nd  ;  but  in  proceedings  by  or  in  behalf  of  the  crown,  affecting  indi- 
viduals by  name,  it  will  generally  be  found  to  have  prevailed ;  as 
in  Rex  V.  Manning,  i  Burr.  R.  377,  an  act  of  parliament  had 
authorized  the  surveyor  of  the  highways  to  dig  gravel,  etc.,  upon 
lands  in  the  occupation  of  Manning,  upon  an  order  of  the  sessions 
for  that  purpose.  The  certiorari  to  remove  such  order  was  entitled 
as  above — Manning,  the  complaining  party,  being  styled  defendant. 
The  case  of  Rex  v.  King  et  al.,  2  D.  &  E.  234,  cited  by  Chief 
Justice  Ewing,  in  the  State  v.  Hanford,  6  Halst.  75,  as  conflicting 
W'itli  this  rule,  will  not,  perhaps  upon  examination,  be  found 
inconsistent  with  it.  That  case  rather  belongs  to  a  numerous 
and  ever  occurring  class  of  cases  in  which,  though  the  state  must 
be  the  plaintiff  in  certiorari,  no  particular  individual  can,  with  strict 
legal  propriety,  be  styled,  or  treated,  as  defendant  on  the  record. 
I  allude  to  such  proceedings  on  the  part  of  the  state,  or  under  its 
authority,  as  affect  the  community  in  general,  or  the  inhabitants 
of  a  particular  county,  or  district  of  country — such  as  the  Mid- 
dlesex court  house  election  ctse,  Coxe,  240;  the  case  of  Anderson, 
sheriff-elect  of  tlunterdon  county,  Coxe,  318;  the  by-laws  of  the 
corporation  of  New  Brunswick,  Coxe  393  ;  the  boundary  question 
between  counties,  i  Green  R.  98 ;  and  to  these  may  be  added  orders 
and  proceedings  of  boards  of  assessors,  and  boards  of  freeholders, 
relating  to  taxes,  county  bridges,  etc.,  and  other  n^atters  of  public 
and  general  nature.  The  court  did  not  in  the  case  of  the  State 
V.  Kirby,  and  I  do  not  in  this  case,  intend  to  carry  the  rule  so  far 
as  to  embrace  the  class  of  cases  just  referred  to.  Tn  them  the  rules 
ought  to  be  entered,  and  all  of  them  entitled  as  between  the  state 
on  the  one  side,  and  the  corporation,  commissioners,  officers  or 
other  persons,  whose  acts  are  complained  of,  on  the  other. 

But  the  question  in  this  case,  is,  whether  the.  iiame...Qi.the  state^ 
has  properly  Ix^en  made  use  of  as  plaintiff  in  certiorari?  I  _a|iL_Q£- 
thc  oi)inion  Tt  has  not.  If  tlie  landholders  have  been  injured  at 
all.  they  have  ])cen  injured  by  lire  Morris  Canal  &  Banking  Com- 
pany. It  is  a  matter  of  private  and  individual  r^ght,  in  wnich  fhe 
state  has  no  other  interest  but  what  it  has  in  ever}'  other  matter 
between  citizen  and  citizen.     The  company  are  bound  to  pay  for 


§    3  '^"^^'^    I'AKTIliS.    '  637 

the  lands  the}-  take,  and  the  damages  they  do,  in  constructing  the 
canal.  The  law  has  constituted  a  tribunal  to  decide  between  the 
company  and  the  landholders ;  the  individuals  composing  that  tri- 
bunal were  to  be  designated  upon  the  application  of,  and  certain 
preliminary  steps  to  be  taken  by,  the  company  (see  charter,  6 
section,  in  Har.  com.  95).  The  appointments  have  been  made,  and 
the  persons  appointed,  have  acted  in  the  premises.  Some  of  the 
landholders  are  dissatisfied,  as  well  with  the  doings  of  the  ap- 
praisers, as  the  manner  of  their  appointment  What  does  all  this 
present  but  a  matter  of  private  and  individual  interest  and  dispute  ? 
The  company  are  responsible,  as  well  for  the  regularity  of  the 
appointment  of  the  appraisers,  as  for  the  legality  of  their  proceed- 
ings ;  and  I  see  nothing  to  prevent  a  direct  appeal  to  this  court, 
by  certiorari,  at  the  suit  of  the  complaining  party,  against  the 
Morris  Canal  &  Banking  Company,  without  using  their  name,  or 
invoking  the  aid,  of  the  state  in  any  other  way  than  by  the  command 
of  its  writ.  My  opinion  therefore,  is,  that  the  name  of  the  state  has 
been  unnecessarily  and  improperly  employed  in  this  case.  _^i^ 
howeveF,  this  was  the  only  objection,  I  would  not  quash  the  pro- 
<5eeclings,  but  direct  the  entries  in  our  minutes,  and  the  indorse- 
ment on  the  writ  to  be  amended.  The  State  v.  Kirby,  2  South.  835 ; 
The  State  v.  Hanford,  6  Halst.  76.     *     *     * 

(That  portion  of  the  opinion  dealing  with  the  direction  of  the 
writ  and  the  return,  is  here  omitted.     It  will  be  found  in  §  2,  post.) 

If  the  controversy  was  to  terminate  with  this  motion,  it  would 
be  unnecessary  to  pursue  the  subject  any  further,  but  as  such  is 
not  likely  to  be  the  case,  I  shall  proceed  to  consider  the  fourth 
exception,  viz. :  That  the  writ  and  return  is  multifarious — First, 
becauje  the  prosecutorFliaW"  no'  corTirnoii""of  "foiiit  iiiterests,  but 
onfy  several,  independent  and  distinct  rights ;  and  secondly,  because 
the  certiorari  calls  for  five  several  and  distinct  records,  though  the 
prosecutors  are  neither  parties  or  privies  to  all,  or  to  any  two  or 
niCre  of  therii,  , 

"Tt  was  asked  by  the  counsel  for  the  defendants  how  this  cause 
is  to  be  conducted?  Are  the  prosecutors  to  join  in  one  common 
assignment  of  errors,  or  is  each  one  to  assign  for  himself  the 
error  he  complains  of,  as  affecting  his  own  rights?  If  it  becomes 
necessary  for  the  prosecutors  to  enter  rules,  or  take  depositions, 
to  prove  matters  not  common  to  them  all,  but  applicable  only  to 
their  individual  cases,  in  what  manner  is  it  to  be  done?  Are  all 
to  be  actors  for  each ;  or,  having  got  the  different  records  here  by 
a  joint  process,  are  they  now  to  sever,  and  each  to  proceed  for 
himself?  These,  and  other  questions  must  be  met  and  answered. 
But  it  is  nQ_ans_wer  to  say,  as  ^vas  done  in  argument,  that  separate 
certioraries_won\<l  be  so  expensive  as  to  amount  to  a  denial  of 
"Justice;  that  some  of  the  prosecutors  would  be  unable  to  bear  the 


638  MORRIS   CANAL   &    BANKING    COMPANY   V.    THE    STATE.  §    3 

expense  of  an  individual  suit.  If  such  be  the  case,  it  is  no  denial 
of  justice,  in  the  proper  and  legal  sense  of  that  expression.  ]>Jor^ 
must  we  amalgamate  separate  and  individual  claims,  because  the^ 
law  abhors  a  multiplicity  of  suits.  Combinations,  for  the ■  purposes^ 
of  litigation,  are  equally  odious.  The  same  argument  would  justify 
a  joint  action  in  every  other  case,  where  the  plaintiffs  could  plead 
poverty,  provided  they  had  sustained  similar  injuries  and  were  en- 
titled to  similar  remedies.  Nor  is  it  any  answer  to  say,  that  the 
prosecutors  have  one  common  right,  if  by  that  is  meant  only,  that 
each  has,  in  common  with  the  others,  a  right  to  complain ;  and  if 
by  one  common  right  is  meant  a  joint  right  or  joint  cause  of  action, 
it  is  not  true.  What  has  A  to  do  with  B'sjand,  or  with  the  ^stm^ 
ages  assessed  to  him?  But,  it  is  said,  the  appraisers  adopted  cer- 
tain erroneous  principles,  which  they  applied  to.the. cases  of  all.  lie 
it  so;  that  cannot  give  them  a  joint  remed;^^  A  was  not  injured 
by  the"applicatiOn  of  that  erroneous  principle  to  the  cases  of  B 
and  C.  If  injured  at  all,  it  was  by  the  application  of  that  principle 
to  his  own  case.  Suppose  several  causes  pending  in  this  court,  of 
the  same  character,  between  dift'erent  parties.  We  mistake  the  law, 
and  by  the  application  of  an  erroneous  principle  to  all  the  cases, 
we  give  judgment  against  the  several  defendants ;  will  it  be  pre- 
tended that  therefore  the  defendants  miay  have  a  joint  writ  of 
error?  Again,  it  is  said,  the  landholders  are  all  parties  to  the 
record.  This,  however,  is  not  so,  unless  the  five  different  records 
remaining  in  the  several  counties  constitute  in  fact  but  one  entire 
record.  But  if  it  were  so,  it  would  not  alter  the  case ;  the  land- 
holders would,  indeed,  be  all  parties  to  the  record,  but  not  a  party; 
each  would  be  a  part}^  in  his  own  right.  The  rights  of  the  land- 
holders are  not  joint  and  several.  They  must  be  either  the  one  or 
the  other.  If  joint,  then  all  of  them,  without  exception,  ought  to 
have  united  in  this  writ,  unless  pemiitted  by  a  rule  of  this  court, 
to  sever;  and  if  several,  then  they  cannot,  upon  any  principle,  unite 
as  plaintiffs  or  prosecutors. 

The  cases  cited  by  the  plaintiff's  counsel  Rex  v.  Harmer  ct  ah, 
And.  344,  &  Rex  v.  Inha1)itants,  etc.,  2  Salk.  452,  only  show  that 
one  certiorari  will  remove  several  orders  or  indictments  against 
the  same  individual ;  4  Vin.  Abr.  tit.  Cert.  337,  let.  B.  2. 

Upon  the  best  consideration  I  have  been  able  to  give  this  sub- 
ject, the  result  in  my  mind  is,  tJiat  ivhcrc  the  injured  or  coin- 
plaining  party  cannot,  Jlimsclf,  '^pnir-hrnl-frmrTfil.r.j:^  hf  tke  piorij- 
tiff  in  certiorari  (as  he  cannot  be  ivhcrc  the  stale  is  actuaUy^^ai 
in  Ic^al  contemplation,  a  party  to  the  proceedings) ;  /hi:i\'ilic_urjt 
must  he  issued  at  the  suit  of  the  state,  upon  the  oppHcation^of  Jhe_^ 
indii'iduals  seeking  relief  or  protection;  zuho  are^hen  the  relators 
or  prosecutors,  or  are  defendants  in  certiorari^ 'according  to~ljfie 
nature  of  the  case;  that  in  all  such  cases,  the  icrif  may  be  issued  at 


§    3  THE  PARTIES.  639 

ihc  instance  of  any  one  or  more  of  any  number  of  persons  who 
may  be  affected  by  the  frocecding  below,  however  separate  or  dis- 
f'lnct  their  respective  rights  or  interests  in  the  matter  may  be.  The 
court  may  then  reverse  or  set  aside  the  order,  judgment  or  pro- 
ceeding complained  of,  as  to  any  one  or  more  of  the  prosecutors, 
or  confirm  the  same  as  the  law  of  the  case  may  require.  Accord- 
ingly we  laid  it  down,  that  a  writ  for  the  removal  of  all  indict- 
ments against  A,  may  remove  an  indictment  against  him'  and 
twenty  others,  so  far  as  concerns  him ;  i  Bac.  Abr.  tit.  cert.  573, 
let.  I.  Again,  if  there  be  but  one  indictment,  and  the  offences 
several  as  if  A,  B,  C,  and  D,  be  indicted  by  one  bill,  for  severally 
keeping  disorderly  houses :  A  and  B  may  have  a  certiorari,  and 
it  will  remove  the  indictment  as  to  them:  and  the  record  is  then 
in  B.  R.  virtually  and  truly,  as  to  A  and  B  ;  but  as  to  C  and  D, 
the  record  remains  below ;  4  Vin.  abr.  tit.  Cert.  337  let.  B. 

The  State  v.  Wilson,  assessor,  etc.,  i  Penn.  R.  300,  which  was 
a  certiorari  to  remove  the  assessment  of  taxes,  the  State  v.  Kirby, 
2  South.  835,  and  another  case  of  the  same  name  in  i  Halst.  143, 
by  which  warrants  for  militan,^  fines  against  a  number  of  delin- 
quents were  reviewed,  are  all  in  perfect  accordance  with  these 
principles :  for  in  each  of  those  cases,  the  state  was  the  actor, 
and  necessarily  the  plaintiff  in  certiorari.  But  if  tJTe__parties  seek- 
ing relief,  can  have  a  certiorari  in  their  own  names,  as  plaintiffs 
oh  the  record,  they  must  prosecute  it  according  To  their  rights. 
ti  more  than  one  gerson  is  concerned,  and  they  are  jointly  bound 
by~ltie  order  or  judgment  below,  they  must  a-11  unite  and  prosecute 

"aT  joint  certiorari  (urjesj^by^^suiiimons  and^  sever^^  rule  of 

wnrrt  in  lieu  thereof)  ;  and  then  this  court  must  either  affirm 
or  rex^erse  the  whole  matter.  On  the  other  hand,  if  the  order 
or  proceeding  below,  though  it  constTFiItes  but  one  "entire  record, 

^affects  them  severally  and  not  jointly,  they  mu sFthen"eek  their 
rcFBedies,  bv  separate  writs  of  certiorari.  "  They  cannot  join  in 
one  writ,  and  then  have  divers  trials  and  divers  judgments  in  that 
one  suit.  The  reason  for  this  difference,  between  those  cases  in 
which  the  state  must  be  plaintiff,  and  those  in  which  the  injured 
individuals  may  themselves  be  plaintiffs  in  certiorari,  is  this,  viz. — 
If  several  persons  are  jointly,  or  jointly  and  severally  bound  by 
one  record,  and  all  will  not,  though  all  might  unite  as  plaintiffs, 
in  error,  there  may  be  summons  and  severance.  Bvit  if  it  is  a 
matter  in  which  the  state  is  a  party  and  must  therefore  be  plain- 
tiff on  the  record,  there  can  be  no  severance  and  summons  among 
defendants;  and  therefore,  if  the  state  will  not  lend  its  name  to 
such  of  the  defendants  as  wish  to  appeal  from  the  order  or  pro- 
ceeding below,  all  would  be  remediless. 

It  was  argued  by  the  counsel  for  the  plaintiff,  that  if  the  state 
creates  a  corporation,  and  gives  it  a  right  to  enter  upon  and  take 


640       STAIE  EX  REL.  CLARK  ET  AL.  V.  SOUUERS  ET  AL.       ^  3 

the  lands  of  individuals,  they  have  the  right  to  use  the  name  of 
the  state,  for  their  protection  against  any  irregular  or  unlawful 
conduct  on  the  part  of  the  corporation.  It  is  true,  if  a  corpora- 
tion abuses,  -or  misuses  its  franchise,  the  state  is  the  proper  party 
to  call  them  to  account.  But  it  by  no  means  follows  because  the 
state,  bv  its  legislative  act,  has  created  the  corporation,  there- 
fore, in  every  controversy  between  it  and  individuals,  the  state 
must  be  a  party.  It  is  no  answer  to  say  the  proceeding  complained 
of  took  place  under  the  charter.  A  corporation  can  do  no  act 
but  in  virtue  of  its  corporate  authority ;  and  that  argument,  there- 
fore, would  involve  the  state  in  every  transaction  between  the  cor- 
poration and  individuals.  The  law  cannot  be  so.  An  examination 
of  the  cases  in  which  the  state  here,  or  the  crown  in  England,  has 
been  plaintiff  in  certiorari  against  corporations,  whether  municipal 
or  private,  will  show  that  the  object  of  the  certiorari  was  to  call 
in  question,  either  the  right  of  the  corporation  to  do,  or  the  manner 
of  doing  some  act  affecting  the  public  interest. 

The  counsel  for  the  plaintiffs  by  way  of  preliminary  objection, 
insisted  the  defendants  were  out  of  time ;  that  they  ought  to  have 
raised  these  questions  on  the  rule  to  show  cause  why  this  writ 
should  not  be  allowed.  I  do  not  think  so.  The  only  inquiries,  on 
the  argument  of  that  rule,  were,  whether  it  was  a  proper  case  for 
a  certiorari,  and  whether  proper  or  sufftcient  grounds  was  laid  for 
an  allocatur.  The  form  of  the  writ  was  not  discussed  or  settled 
on  that  rule. 

LIpoii.  the  whole,  for  the  reasons  I  haye  assigned,  I  am  of  the 
opinion,  the  certiorari  in  this  case,  and  ihe  return  thereto,  must 
be  quashed,  and  set  aside  with  costs. 

Ford,  J.,  concurred. 

f Opinion  of  Rversox.  J.,  omitted.") 

When  there  may  be  a  joinder  of  parties  plaintiff:  see  VVoodworth  v. 
Gibbs,  61  Iowa  398;  Richman  v.  Muscatine  Co.,  70  Fovva  627;  Cowing  v. 
Ripley,  76  Mich.  650;  Powell  v.  Hichner,  32  N.  J.  L.  211;  Libby  v.  West 
St.  Paul,  14  Minn.  248;  People  v.  Rensselaer.  11  Wend.  (N.  Y.)  174; 
Otey  V.  Rogers,  4  Ired.  L.  (N.  Car.)  534;  People  v.  Cheetham,  45  Hun 
(N.    Y.)    6. 


2.     Defendants. 

STAT]-.  EX  RKL.  CLARK  kt  .m..  v.  SDITDI'.RS  kt  .\i...  JUSTICES. 

i8(j7.     Court  ok  .\imm:.\i,s  oi"  Missouri.     Ch)  Mo. 
.\pp.  472. 

Bond,  J. — Certain  taxpaying  citizens  of  Steelville,  Crawford 
County,  iK'tition  for  a  writ  of  certiorari  directed  to  the  justices  of 
the  county  court  of  said  count \',  re(iuiriug  them  to  certify  the  full 


I    3  THE  PARTIES.  64I 

proceedings  of  record  in  that  court,  touching  the  issuance  of  a 
license  as  dramshop  keeper  to  one  William  Sorrell.,  Tlie_£l5^- 
tTffs~"state  that  said  court  acted  without  authority  of  law  in  the^ 
prenTTses^~rn  that'  1fs  records,  do  not  show  that  safd  licensee  Is  a 
law-abidins;-.  taxpaying-,  male  citizen,  nor  that  the  parties  signing  his 
ajjplication  were  such,  nor  that  the  bond  required  by  law  was  given 
and  approved  by  said  court.     The  w^rit  issued  as  prayed. 

The..j:iatom  of  two  of  the  parties  named  as  defendants  sets  up 
that  their  terms  of  office  as  members  of  said  county  expired  on 
January  i,  1897,  at  which  times  their  successors  were  duly  qualified, 
hence  they  have  no  power  or  authority  to  certify  the  record  of  said 
court.  The  return  of  the  remaining  justice  is  accompanied  by  a 
transcript  of  the  proceedings  in  question.  An  inspection  of  these 
does  not  disclose  that  the  bond  required  of  appticarits  f(ir  dramshop 
h"censes~\\^as  given  and  approved,  nor  do  the  proceedings  themselves 
appear  to  have  been  approved  by  the  county  court.  The^  dg,fcndant^ 
liled  a  written  motion  to  quash  the  writ  against  them  for  misdirec- 
tion, in  that  tlie  judges  of  the  county  court  of  Crawford  county  at 
the  lime  of  its  issuance  were  not  made  parties.  Under  our  statutes 
this  court  is  one  of  record  and  composed  of  three  judges,  a  ma- 
jority of  whom  must  concur  in  the  transaction  of  any  official 
business.  The  court  is  also  required  to  keep  just  and  faithful 
records  of  its  proceedings.  R.  S.  18B9,  §§  3225 ■734 16-3441.  Jn^ 
tliis  state  the  practice^  iii_prDceedings  for  certiorari  is  governed  by 
principles  of  the  common  law.  These  require  the  w-rit  when  not  used 
as  ancillarx,  to  is.^ue  /r'  tlic  custodians  of  the  record  to  be.certified, 
that  being  the  only  subject  for  review.  State  ex  rcl.  v.  Walbridge,  62 
AfoTT'rpp.  162 ;  Ward'v.  Board  of  Equalization,  36  S.  W.  (Mo.) 
648.  It  necessarily  results  that  the  ivrit  of  certiorari  cannot_he 
directed  to  any  e.v-otfjcial'  after  he  has  parted  7vifh  the  record 
sougfiTTo'"be  brought  up.  In  rt;  Evingson,  43  N.  W.  733 ;  Kilpat- 
rick  v.  Commissioners,  42  N.  J.  L.  510.  Hence  no  returns  under 
thefacts  in  this  case  can  be  required  of  tlie  ex-members  of  the 
court.  The  legal' control  and  custody  of  the  records  of  the  countv 
court  of  rrrn\-ford  county  belong  tn  (lie  court  as  constituted  at  the 
time  the  writ  in  this  case  was  applied  for.  The  physical  posses- 
sion of  such  record  by  the  clerk  who  was  the  mere  agent  of  the 
court,  did  not  impair  the  legal  custody  and  control  vested  in  the 
court  itself.  T^^hasjpeen  the  uniform  practice  in  this  state  and 
elsewhere,  as  far  as  \vF1ai'e"adviseid,  when  the  judgment  or  order 
of  a  court  or  other  body  is  attacked  by  certiorari,  to  direct  a  writ 
to  the  triiiunal  itself,  which  n>akes  the  order  and  controls  the  record. 
State. £j,--i-fc'/.R  eider  v.  Moniteau  Co.,  Ct.,  45  Mo.  App.  387;  State 
y.  Schneider,  47  Mo.  App.  669.  The  reason  for  this 'is  that  it 
is  the  record  of  the  tribunal  acting  judicially  which  must  be 
■quashed  or  affirmed  upon  the  return  of  a  wri..  of  certiorari.     Hence 


642  STATE    ET    AL.    V.    COMMISSIONERS,    ETC.  §    3 

the  return  must  be  niade  by  the  corporate  body  or  entity  exerting 
legal  control  over  such  record.  This  has  been  determined  in  an 
analogous  case  by  the  supreme  court  of  Wisconsin.  State  ex  rel.  v. 
^^'e!nfurther,  66  N.  W.  702.  In  that  case  the  board  of  county 
supervisors,  by  ordinance,  undertook  to  attach  the  southern  part 
of  the  town  of  INIanitowoc  to  the  town  of  Newton.  Citizens  of 
the  attached  territory  sued  out  a  writ  of  certiorari  against  the 
county  clerk,  who  made  a  full  return  of  the  proceedings  of  the 
board.  The  court  quashed  the  writ,  saying:  "Until  the  proper 
defendant  is  before  the  court,  the  court  can  have  no  jurisdiction 
of  the  subject  matter.  This  can  only  be  acquired  by  the  proper 
writ,  and  a  return  made  by  the  proper  officer  or  board.  The  writ 
in  this  case  should  have  been  directed  to  the  board  of  supervisors, 
and  the  return  should  have  been  made  by  the  supervisors  thein- 
selves  or  a  majority  of  them."  So  in  the  case  at  bar  the  writ 
was  properly  issuable  to  the  county  court  of  Crawford  couhfy  as 
then  constituted.  A  court  composed  of  several  judges  can  only 
speak  and  act  as  such,  through  the  medium  of  all  or  a  majority 
of  its  members.  Hence  to  possess  this  court  with  the  record  of 
the  action  of  the  count}^  court,  it  was  essential  that  the  returns 
of  at  least  a  quorum  of  that  body  should  have  been  made.  ^The 
relators,  however,^  only  made  one  of  the  members  of  that  court  a 
p"arty  defendant  (the  mention  of  the  ex-members  Uelng  merely 
nugatory).  ■  Conceding  therefore  the  total  insufficiency  of  the 
transcript  as  presented  by  the  return  of  a  single  member  of  the 
county  court  to  show  authority  of  record  for  the  issuance  of  a 
dramshop  license,  we  are  precluded  from  so  holding  by  the  fact 
that  the  court  in  charge  of  such  record  has  lieither  been  made  a' 
party  to  this  proceeding,  nor  has,  a  majority  of  its  members  ap- 
peareTl.  The  result  is  that  the  writ  hereTiibefore"  Issued  will  Be 
quashed  and  the  proceeding  dismissed.  It  is  so  ordere^d!  All 
concur. 


STATE,   KIRKPATRICK   et  al..  PROSECUTORS,  v.   COM- 
MISSIONERS OF  STREETS  AND  SEWERS  OF 
NEW  BRUNSWICK  et  al. 

1880.     Supreme  Court  of  New  Jersey.     42  N.  J.  L.  510. 

The  opinion  of  the  court  was  delivered  by 

Dixon,  J. — This   certiorari  brings  up  an   assessment  made  by 

"The  Commissioners  of  Streets  and  Sewers  in  the  City  of   Ne\v' 

Bmnswfck."     Tjie  writ  was  directed  to,  not  only  these  commis- 

,  sinners,   hut   also  to   '^Thc    Mayor   and    Commofi~'"Cm:ncil  7)f  tTie 

City  of  New  Pninswick."     The  cninniissioncrs.  Jiayj^„jinade  j^eturn 


§    3  THE  PARTIES.  643 

but  the  cit\'  asks  to  have  the  writ  quashed  as  to  tUe  jniinicip,4i,t3., 
on  tlie  i;rMniid  that  it  has  not  custo<ly  of  the  record  to  be  certified, 
and  lience  should  not  have  been  commanded  to  make  return.  This 
position  is  well  taken.  The  act  providing  for  the  commission 
(Painiph.  L.  1871,  p.  795),  empowers  the  commissioners  to  make 
the  assessment,  enter  it  in  their  books,  and  collect  the  amount  or 
enforce  the  lien.  The  assessment  remains  wuth  them  for  all  pur- 
poses. They  are  also  created  a  quasi  corporation,  with  power  to 
prosecute  or  defend  any  action  or  process  in  law  or  equity.  They, 
therefore,  as  the  legal  custodians  of  the  record,  should  alone  have 
been  commanded  to  certify  it  for  review.  Morris  Canal  &  Banking 
Co.  V.  State,  2  Green  411;  State  v.  Howell,  4  Zab.  519;  State  v. 
Browning,  4  Dutcher,  556. 

When  it  is  sought  not  only  to  reverse  the  proceedings  of  inferior 
tribunals,  but  also  to  assail  rights  acquired  upon  the  strength  of 
them,  it  is  proper  to  bring  in  the  persons  claiming  these  rights, 
and  this  may  conveniently  (though  perliaps  inartistically)  be  done, 
by  directing  the  writ  to  them,  and  serving  it  upon  them.  Fleisch- 
auer  v.  West  Hoboken,  10  Vroom  421  ;  Seidler  v.  Chosen  Free- 
holders, 10  Vroom.  632;  State,  Kiernan,  pros.  v.  Jersey  City.  11 
Vroom.  483. 

But  in  this  case,  all  the  rights  of  the  municipalit\%  by  force  of 
these  assessments,  are  legally  confided  to  the  guardianship  of  these 
commissioners. 

As_tojthe  cjty,  therefore,  the  writ  should  be  quashed,  with  costs. 

But  I  see  no  reason  why  .this  misdirection  should  impair  the 
writ  asto  the  commissioners.  So  far  as  they  are  concerned  it  is 
fnefe  surplusage.     *     *     *  -^-— -=*        ..-.^ 

See  also,  Crawford  v.  Scio,  22  Mich.  405;  Commonwealth  v.  Peters.  3 
Mass.  229;  Milwaukee  Iron  Co.  v.  Schubel,  29  Wis.  444;  Derton  v.  Bo\'d, 
21  Ark.  264:  People  v.  Mayor  New  York,  20  Hun  (N.  Y.)  73;  Ex  parte 
Albany,  23  Wend.  (N.  Y.)  277;  State  v.  Commissioners,  42  N.  J.  L.  510 ; 
Commonwealth  v.  Winthrop,  10  Mass.  177 ;  Livingston  v.  Livingston,  24  Ga. 
379;  Wilson  V.  GifiFord,  41  Mich. -417;  State  v.  Jersey  City,  35  N.  J.  L.  404. 


STATE  EX  REL.  TIBBITS  v.  CITY  OF  MILWAUKEE  et  .\l. 

1893.    Supreme  Court  of  Wisconsin.    86  Wis.  376 ;  57  N.  W.  45. 

*  *  *  A  WRIT  of  certiorari  was  allowed  and  sued  out  of  the 
circuit  court  for  Alilwaukee  Count^^  on  the  relation  of  Geo.  INI 
Tittrtts,  to  review  and  reverse  and  set  aside,  for  alleged  illegality, 
certarn  proceedings  of  the  common  council  of  the  city  of  Mil- 
waukee, in  opening,  widening  and  extending  Kane  place  from 
Prospect  Avenue  to  Summit  Avenue,  in  the  Eighteenth  ward  in 


644  STATE  EX  REL.  TIBBITS  V,   CITY  OF  MILWAUKEE  ET  AL.  §    ^ 

said  city,  and  confirming  the  report  of  damages  fcr  property  taken 
for  that  purpose,  and  "the  assessment  of  beneiits  upon  property 
alleged  to  be  benefited  thereby.  The  relator  was  the  owneT^of 
certain  lots  assessed  for  such  benefits.  The^writ  was  dirccfe'3~tp 
"the  City  of  Milwaukee  and  Geo.  R.  Mahoney,' as  city  clerk,"  etc., 
and  was  superseded  and  yacated  b^  th^  (^^^  because   it_ 

was  not  directed  to  the  proper  paH\".'^'^rom  an  order  to""tKat  eflfect, 
the  relator  appealed. 

PiNNEY,  J. — The  circuit  court  could  not  review  the  proceedings 
mentioned  in  the  writ  in  this  case,  for  the  reason  that  it  \vas  uoi 
directed  to  the  body  or  board  whose  acts  were  sought  to  be  ques- 
tioned and  reviewed  by  it.  By  section  i,  ch.  4,  of  the  city  charter 
of  Milwaukee,  It  is  provided  that  "the  municipal  government  of 
the  city  shall  be  vested  in  the  mayor  and  common  council,"  and 
the  conmion  council  is  a  continuing  iDody  (section  2.  c.  4,  City 
charter),  and  has  the  control  of  all  its  record  and  papers,  while 
the  city  clerk'  has  the  custody  thereof,  and  of  the  corporate  seal, 
arid~ts  a  mere  ministerial  officer,  without  any  judicial  or  quasi 
judicial  power.  It  is  a  general  rule  that  the  writ  of  certiorari 
cannot  go  to  a  mere  ministerial  officer,  save  in  exceptiohaTc'ases, 
as  where  the  Tx)dy  or  board  whose  acts  are  sought  to  be' reviewed, 
is  not  a  continuing  one  or  has  ceased  tq  exist,  and  such  ministerial 
Otificer  has  the  custody  of  the  record  or  proceeding  sought  to  be 
reviewed.  Such  was  the  case  of  Iron  Co.  v.  Schubel,  29  Wis. 
444,  explained  in  State  v.  Common  Council  of  Fon  du  Lac,  42 
Wis.  287.  294.  The  latter  was  a  case  identical  with  this  in  respect 
to  the  direction  of  the  writ,  and  conclusively  shows  that  in  this 
case  the  writ  should  have  been  directed  to  the  common  council, 
and  not  to  the  city  clerk.  Tlio  f.ict  tliat  the  writ  is  directed  also 
to  the  city  as  a  corporate  bod}-  w  ill  not  obviate  the  objection.  The 
city  in  its  corporate  power  has  no  judicial  or  (///(/,s-/  judicial  power 
in  the  premises,  and  for  that  reason  the  writ  should  not  have  been 
directed  to  it.  The  error  of  directing  such  a  writ  to  the  corpora- 
tion in  street  cases  was  noticed  and  held  fatal  in  Bogert  v.  Mayor, 
etc.,  7  Cow.  158;  In  re  Mt.  Morris  Square,  2  Hill  14.  The  author- 
ities are  very  numerous  to  the  effect  that  where  the  acts  of  a 
corporate  boarrl  or  of  corporate  officers  arc  the  proper 
subject  of  review  bv  tlie  writ  of  certiorari,  the  writ  must  be 
directed  to  such  l)oar(l  or  officers,  and  not  to  the  corporation.  5 
Wait,  Pr.  471  ;  Mcchcm,  Pub.  Off.  ijij  looi,  1007,  and  cases  cited; 
///  re  Mt.  Alorris  Square,  2  Hill  14.  Where  the  writ  has  been  mis- 
directed, it  may  be  superseded  before  its  return,  as  well  as  after. 
Ball  V.  Warren.  16  Mow.  I'r.  379;  Railroad  Co.  v.  McCoy,  5  How. 
T'r.  378;  Ferguson  v.  Jones,  12  Wend.  241.  And  if  it  has  been 
returned  the  court  may  order  it  quashed  or  vacated.  Tidd,  Pr. 
4'^.^ ;  .S  Wait.  Pr.  474,  475.  _The  circuit  court  properly  vacated  the 
writ.     The  order  of  the  circmt  court  Is  affuninl. 


§    3  THE  PARTIES.  645 

STATE  EX  REL.  OLLINGER  et  al.  v.  WEINFURTIIER, 
COUNTY  CLERK  et  al. 

1896.    Supreme  Court  of  Wisconsin,    92  Wis.  546 ;  66  N.  W.  702. 

The  city  of  ]\Ianitowoc  was  incorporated  by  an  act  of  the  legis^ 
latuTT'ln  1870.  It_iiias_organized  of  territory  which  wa.s  a  part,  of 
the  town  01  Manitowoc,  and  extends  "entirely  across  the  town,  sq, 
as  to  completely  separate  the  town  in  two  parts,  at  a  distance  of 
about  two  miles  removed  from  each  other,  and  not  at  any  point 
contiguous  to  each  other.  That  part  of  Manitowoc  which  lies  north 
of  the  city  comprises  about  nine  full  sections  of  land,  and  that 
south  of  the  city  comprises  about  3J/  sections.  About  two  thirds 
of  the  voters  of  the  town  live  north  of  the  city  and  about  one  third 
south  of  the  city.  This  condition  has  existed  ever  since  the  incor- 
poration of  the  city,  until  the  27th  day  of  May,  1893,  when  the. 
county  board  of  supervisors  of  Alanitowoc  comity,  by  an  ordinance 
inlRie'form,  but  without  a  written  petition  therefor,  and  without 
suhmission  of  the  matter  to  a  vote  of  the  town,  declared  that  part 
of  the  town  of  Manitowoc  which  lies  south  of  the  city  to  be  thereby 
attached  to  and  a  part  of  the  town  of  Newton,  which  was  an  adr 
joining  town.  Qn  tlie  relation  of  several  residents  of  the  territory 
so  attached  to  the  town  of  Newton,  a  writ  of  certiorari^  addressed 
to'Joseph  AVeinfurther,  as  county  clerk  of  the  county  of  ]\Ianitowoc, 
was  issued  out  of  the  circuit  court  of  Manitowoc  county,  and 
served  upon  the  county  clerk.  The  county  clerk  made  what  was 
denominated  "a  return,"  in  which  he  certified,  in  efifect,  that  the  pro- 
ceedings of  the  board  were  correctly  set  forth  in  the  writ  of  certio- 
rari which  was  returned  therewith.  The  towns  of  Manitowoc  and 
Newton  and  the  county  of  Manitowoc,  upon  invitation  of  the 
relator's  attorneys,  intervened  in  the  action,  and  filed  various  affi- 
davits. They  also  moved  upon  the  records,  files  and  affidavits,  to 
supersede  and  to  quash  the  writ.  These  motions  were  overruled. 
On  the  25th  of  April,  1895,  tlie  court  rendered  judgmeiit  on  the 
merits,  reversing  the  ordinance  of  the  county  board  of  supervisors. 
That  board,  up  to  this  time,  had  not  been  a  party  to  the  action.  On 
June  3,  1895,  the  district  attorney  of  ^Manitowoc  county  appeared 
in  the  action,  for  the  county  board  of  supervisors  of  Manitowoc 
county,  with  tfie~"conseiit  of  the  relators,  and  against  the  objection 
of  the  intervening  towns  and  Manitowoc  county.  The  appear- 
ance was  for  the  purpose,  if  possible,  of  obviating  objections 
to  the  direction  of  the  writ  and  having  the  action  finally  deter- 
mined. The  district  attorney  stipulated  w'ith  the  attorneys  for  the 
relators  to  the  effect  that  the  county  board  of  supervisors  submit 
to  the  jurisdiction  of  the  court,  arid  adopt  the.  return  made  by 
the  county  clerk  as  its  return.  The  town  and  county  of  Mani- 
towoc. onlv;anpealed.  "'  ""■■  


646  STATE    V.     WEINFURTHER,    COUNTY    CLERK    ET    AL.  §    3' 

XewmaxX,  J.— (After  stating  the  facts.)  In  enacting  the  ordi- 
nance in  question,  the  county  board  was  acting  in  a  poHtical  and 
governmental  function,  in  the  interests  of  the  public,  and  not  in 
the  interest  or  for  the  county  in  its  private  or  corporate  capacity. 
The  writ  of  certiorari,  upon  which  it  should  be.  sought  to  review 
iTs'action,  should  be  directed  to  th'e~  officers  or  board  whose  act  it 
was  sought  to  review,  whenever  that  is  a  permanent  body,  and 
Has  control  of  its  own  records.  And  this  is  true  even  where  a  clerk 
has  custody  of  the  records,  as  tlie  mere  agent  of  the  corporation. 
Tlie  writ;  in  that'case,  should  not  be  directed  to  the  clerk,  but  to  the 
lx>ard  or  body.  If  misdirected,  the  writ  must  be  superseded  or 
quashed.  The  court  acquires  no  jurisdiction  by  it.  State  v.  City 
of  Fon  du  Lac,  42  Wis.  287 ;  State  v.  Milwaukee  Co.,  58  Wis.  4, 
16  N.  W.  25  ;  State  v.  City  of  Milwaukee,  86  Wis.  376,  57  N.  W. 
45 ;  Ex  parte  Mayor,  etc.,  of  Albany,  23  Wend.  277 ;  People  v. 
Highway  Commissioners,  30  N.  Y.  72 ;  Roberts  v.  Commissioners, 
24  Mich.  182.  The  writ  in  this  case  was  misdirected.  It  should 
have  been  directed~forttl5'Xatnity  board~6f  stipervTsof s  of  Manitowoc 
county,  and  not  to  the  county  clerk.  The  appearance  of  the  county 
clerk  in  the  action,  and  his  attempt  to  make  a  return  to  the  writ, 
was  futile  to  give  jurisdiction  of  the  board  of  supervisors  or  of 
the  cause.  The  return  is  a  nullity,  and  confers  no  jurisdiction, 
either  of  the  person  or  of  the  subject  matter.  People  v.  Highway 
Commissioners,  supra.  Until  the  proper  defendant  is  before  the 
court,  the  court  can  have  no  jurisdiction  of  the  subject  matter. 
This  can  only  be  acquired  by  a  proper  writ,  and  a  return  made  by 
the  proper  officer  or  bo?rd.  The  writ  in  this  case  should  have 
been  directed  to  the  board  of  supervlsofs,  and  the  rettu:ri~~sEould 
have  bejcn  niade  by  the  supervisors  themselves,  or  a  majority  of 
them.  Plymouth  v.  Plymouth  Commissioners,  16  Gray  341.  "Nor 
is  a  return,  signed  only  by  an  attorney  for  the  board  sufficient. 
Tcwksbury  v.  Commissioners,  117  Mass.  563;  Worcester  &  N.  P. 
R.  Co.  V.  Railroad  Commissioners,  118  Mass.  561  ;  Chase  v.  Board. 
1 19  Mass.  556.  So  neither  the  bcxird  of  sujiervisors  nor  the 
subject  matter,  the  ordinance,  was  before  the  court. 

It  is  said  to  be  ])roper.  in  some  cases  involving  private  rights, 
to  join  as  defendants,  persons  having  an  interest  adverse  to  the 
relator.  However  that  may  be.  and  v.hether  it  is  applicable  to 
cases  involving  only  public  right,  it  is  difficult  to  see  how  either 
of  the  towns  of  Newton  or  Manitowoc  or  Manitowoc  county  have 
any  interest,  in  their  private  or  corporate  capacity,  in  this  matter. 
Residents  of  the  territory  or  taxpayers,  may  be  said  to  have  an 
interest;  but  the  corporations,  as  such,  can  have  no  interest.  And 
their  voluntary  appearance  in  the  action,  could  not,  at  least  in  the 
absence  of  interest,  confer  jurisdiction.  Nor  is  it  perceived  how 
t!i'-  attempted  appearance  of  the  county  board  of  supervisors',  after 


§    3  '^tlK   I'AUilliS.  647; 

^judgment,  aids  the  judgment..,  It  was  void  when  rendered.  It 
"was^TSW^'when  the  county  board  of  supervisors  was  represented 
jTs'lappearing.  The  court  decided  nothing,  and  changed  nothing 
in  consequence  or  on  the  strength  of  that  appearance.  It  is  diffi- 
"cult  to  perceive  how  the  mere  vohmtary  appearance  by  the  board  of 
supervisors,  and  itsinformal  addptroh  of  this  nulhty,  could  impart 
jtpiriife^nd.  energy.  This  was  held  doubtful  in  People  v.  High- 
way Commissioners,  /?7/'m,  although  the  proper  defendants  appeared 
before  judgment  and  litigated.  This  does  not  question  the  effect 
of  an  appearance  by  a  natural  person,  in  his  own  right,  after 
judgment,  in  an  ordinary  action. 

This  case  is  not  affected  by  those  cases  which  hold  that  the  writ 
should  not  be  quashed  nor  the  action  dismissed,  after  a  hearing  on 
the  merits.  Those  are  none  of  them  cases  of  misdirection  of  the 
writ.  They  were  all  cases  where  the  writ  had  been  properly  issued 
and  returned,  but  was  liable  to  be  quashed  for  irregularities.  Mc- 
Namara  v.  Specs,  25  Wis.  539 :  Morse  v.  Specs,  id.  543 ;  Owens 
v.  State,  27  \\''is.  456 :  State  v.  Milwaukee  County,  supra.  The  writ 
should  have  been  quashed  on  the  motion  of  the  county  cTerk,  the 
part\  served  as  defendant  therein.  The  judgment  of  the,  circuit 
coiirt  is  reversed,  and  the  cause  remanded  with  directions  to  quash 
fhe~wnfl 


PEOPLE  EX  REL.  PORTER  et  al.  v.  TOMPKINS  et  al. 
ASSESSORS  AND   BOARD  OF  SUPERVISORS. 

1886.     Supreme  Court  of  New  York.     40  Hun.   (N.  Y.)   228. 

(A  WRIT  of  certiorari  was  issued  December  5,  i8|s,J:o  the  de-  / 

fendants  to  review  an  assessment  made  against  relators  on  certain 
"rand's'  on  Goat  Islaftd,  in  the  Niagara  River.     I^'elators  maintained       .V 
that   the   assessment   was   erroneous   in   that   af "the   time   it   must    .i 
be  cfeefned  to  have  been  made,  July    i,    1885,   title  to   said   lands/y'        S 
h^  passed  to  the  state  under  an  act  condemning  said  lands  for  4)^ 

a  state  reservation.)  L>  . 

(So  much  of  the  opinion  as  relates  to  the  validity  of  the  assess-       ( 
ment,  is  omitted.) 

Bradley,  J.  *  =•'  *  But  in  any  view  that  may  be  taken  of 
this  question  of  title,  we  are  unable  to  see  how  any  relief  can  be 
afforded  to  the  relators  in  this~proceeding.  The^writ  of  certiorari 
was  issued  in  Deceml)er,  1885,  directed  to  the  assessors~ahd  board 
of  supervisors.  At  that  time  the  assessment-roll  had  passed  from  the 
^ssessloii  and  control  of  the  assessors,  and  any  attempt  to  require 
tnem  to  correct  the  roll  would  necessarily  be  ineffectual.  Thev  are  by 
sTafute  directed  to  deliver  the  assessment-roll  to  the  supervisor  of 


648      PEOPLE  EX  REL.  PORTER  ET  AL.  V.  TOMPKINS  ET  AL.      §  J, 

their  town  on  or  before  the  first  day  of  September,  (i  R.  S.  394, 
§  2^.)  And  by  their  return  it  appears  that  this  was  done  by  the 
assessors.  Xhe-i^lit^ierefore,  as  to  them,  is  not  supported.  (People 
ex  rel.  Marsh  v.  DelaneyT  40  X.  Y.  6^=, ;  People  ex  rcl.  Law  v.  Com- 
missioners, etc.,  9  Hun.  609;  People  ex  rel.  Raplee  v.  Reddy,  43 
Barb.  539;  People  ex  rel.  L.  S.  and  M.  S.  R.  R.  Co.,  v.  Dunkirk, 
22  X.  Y.  W.  Dig.  240;  People  ex  rel.  Heiser  v.  Assessors,  16  Hun. 
407.) 

But  it  is  contended  that  as  the  writ  w^as  issued  to  the  board  of 
supervisors  w^hile  the  roll  was  with  them,  it  brings  it  up  and  the", 
court  mav  declare  the  assessment  illegal  and  order  it  stricken  out. 
The  office  of  the  writ  of  eertiorari  is  to  review  and  correct  errors 
committed  by  tribunals  or  officers  when  exercising  judicial  or  "quasi 
judicial  functions.  (People  v.  ]\Iayor,  2  Hill  9;  People  e'x"'rel. 
Oneida  A'alley  Xational  Bank  v.  Supervisors,  51  X.  Y.  442;  People 
ex  rel.  S.  &  U.  H.  R.  R.  Co.  v.  Betts,  55  id.  600.)  When  it  in- 
volves the  inquiry  whether  the  action  and  determination  were  legal 
and  should  be  set  aside  or  confirmed,  it  may  be  seen  that  the  writ 
may  be  effectual  after  the  powers  of  the  tribunal  or  officers  have 
ceased  as  to  the  matter  in  question,  becaure  it  is  mere  matter  of 
review,  but  when  the  purpose  of  the  proceeding  is  to  have  the 
direction  of  the  court  for  those  to  whom  the  writ  is  issued,  to  do 
some  act  by  way  of  correction  of  an  error,  it  must,  we  think,  be 
within  the  power  of  such  officer  or  tribunal  to  perform  the  act. 
The  writ  w^as  sent  out  to  review  the  action  of  the  assessors.  They 
acted  judicially  in  respect  to  the  question  of  the  assessment  of 
the  property,  and  had  the  power  to  strike  out  any  assessment 
which  its  correction  required.  But  the  board  of  supervisors,  after 
the  roll  went  to  it,  could  exercise  only  sucli"powers  as  w€re""cbrP 
terred  ujwn  them  by  statute. 

While  they  had  some  judicial  duties  to  perform,  they  did  not 
embracetlie  power  of  striking  out  an  assessment.  Amongst  tllWt 
is  tlie  power  to  equalize,  by  increasing  or  diminishing  the  aggre- 
gate valuations  of  real  estate  in  any  town,  by  adding  or  de-^ucting 
a  percentage  of  the  valuations,  so  as  to  produce  a  just  relation 
between  all  the  valuations  of  such  estates  in  the  county,  "but  they 
shall  in  no  instance  reduce  the  aggregate  valuations  of  all  towns 
below  the  aggregate  valuation  thereof  as  made  by  the  assessors." 
(I  R.  S.  395,  §  31;  Bellinger  v.  Gray,  51  N.  Y.  610.) 

Our  attention  is  called  to  no  case  in  which  the  question  arose 
sup])orting  the  contention  that  the  writ  in  such  case  may  effectually 
issue  and  go  to  the  board  of  sui)crvisors  after  the  roll  has  come 
t')  them,  or  that  review  can  be  had  and  such  relief  given  when 
the  writ  has  been  issued  after  the  roll  had  legitimately  passed  from 
Ihc  assessors  to  the  board  of  supervisors.  Tn  People  v.  Reddy, 
.^upra,  the   justice-   ficlivcring  the   opinion    remarked   that   "when    it 


§    3  ''11 1^'   PARTIES.  649 

appeared  upon  this  return  that  the  roll  had  been  delivered  to  the 
supervisors  we  could  have  directed  a  writ  of  certiorari  to  him  or 
to  the  board  of  supervisors,  if  the  roll  had  been  delivered  to  such 
board,  to  bring  the  same  before  us.  The  writ  would  reach  the 
record  and  bring  it  up  wherever  it  might  be,  until  it  had  passed 
beyond  our  power  to  review  the  assessment,  by  delivery  to  the 
collector,  with  the  warrant  of  the"  board  of  supervisors  annexed." 
The  question  did  not  there  arise,  and  this  suggestion  was  obiter. 

In  People  ex  rel.  Bay  State  S.  &  L.  Co.  v.  McLean,  (5  x\bb.  N. 
C.  137)  the  return  made  by  the  assessors  to  the  writ  was  that  the 
roll  had  been  delivered  to  the  supervisor,  and  a  supplementary  writ 
was  issued  to  the  supervisor  directing  him  to  produce  the  record 
before  the  court,  which  was  done,  and  the  court  held  that  there 
was  "no  difficulty  about  striking  the  assessment  from  the  roll,  as 
that  has  been  brought  into  this  court  by  the  supervisor,  in  whose 
hands  it  now  is."  This  was  affirmed  at  General  Term  (17  Hun, 
204)  and  by  Court  of  Appeals  (80  N.  Y.  254)  ;  but  in  the  latter 
court  the  question  was  not  considered  further  than  to  say  that 
the  api>ellants  were  concluded  "from  now  raising  the  objection 
that  certiorari  was  not  a  proper  remedy,  *  *  *  assuming  that, 
if  seasonably  taken,  the  object  should  have,  prevailed."  (And 
see  People  v.  Supervisors.  31  How,  237,)  It  is  difficult  to  see  how, 
by  the  writ  issued  to  the  board  of  supervisors,  can  be  effectually 
reviewed  the  action  of  the  assessors  for  the  purpose  in  view. 

We  are  inclined  to  think  that  the  relators  have  mistaken  their 
remedy,  that  the  proceeding  by  certiorari  cannot  be  supported,  and 
that  the  writ  must  be  quashed. 

Writ  of  certiorari  quashed,  without  costs. 


WHISTLER  V.  WILSON. 
1878.    Supreme  Court  of  Michigan.    39  Mich.  121. 

Per  curiam.  Motion  for  fttrther  return  to  writ  of  certiorari. 
The  proceedings  w^hich  it  is  proposed  to  review  on  the  writ  were 
proceedings  I5y  a  county  drain  commissioner,  who  had  gone  out  of 
office  when  'the  writ  issued.  The  writ  was  nevertheless  directed 
to  him,  and  he  returns  that  he  was  out  of  office  and  no  longer 
has  custody  of  the  papers  and  records. 

We  think  this  is  all  the  commissioner  could  return.  The  pro- 
ceeding is  one  that  must  stand  or  fall  by  the  record,  and  that 
should  be  certified  to  us  by  the  officer  who  controls  it.  Common- 
n-iealth  V.  Winthrop,  10  Mass.  177:  Goodrich  v.  Commissioners, 
I  Michigan  385. 


650  MORRIS   CANAL   &   BANKING   CO.    V.    THE   STATE.  §    3 

Our  attention  is  called  to  Harris  v.  Whitney,  6  How.  Pr.  175, 
and  People  v.  Peabody,  6  Abb.  Pr.  228,  as  laying  down  a  different 
doctrine.  In  the  case  last  mentioned  the  case  w^as  a  special  one 
before  a  judge  whose  action  after  he  went  out  of  office  would  not 
be  of  record  anywhere ;  and  the  case  is  therefore  not  in  point  here 
In  the  case  in  Howard  the  proceedings  seem  to  have  been  had 
before  the  judges  of  a  court  that  had  ceased  to  exist,  and  whether 
the  decision  is  right  or  wrong,  it  can  have  little  force  as  authority 
for  it  professes  to  overrule  another  decision  in  the  same  court, 
which  seems  to  us  the  more  reasonable.  Peck  v.  Foote,  4  How. 
Pr.  425. 

If  the  ends  of  justice  required  a  personal  return  from  the  late 
commissioner  the  case  might  be  different.  But  here'Tie  coulci  refuTrr 
nothing  but  the  record  and  tliat  we  think  is  to  be  obtainedl rom  the 
proper  custodian.  '       = 


MORRIS  CANAL  &  BANKING  COMPANY  v.  THE  STATE. 
1834.    Supreme  Court  of  New  Jersey.    14  N.  J.  L.  411. 

(For  statement  of  facts  and  portions  of  court's  opinion  here 
omitted  see  same  case  §  i,  supra  p.  633.) 

:•:     *     *     *     j>,\\i  II.   ,,Exception  is  taken  to  the  direction  of  the 
writ,  first  bccin^r  llie  persons  to  whom  it  is  addressed  are  calleoT" 
commissioners  instead   of  appraisers;  and   secondly,  that   it  ought 
to  have  been  directed  to  the  clerks  of  the  counties  in  which  the 
lands  lie,  and  not  to  the  appraisers. 

The  first  branch  of  this  objection  is  not  well  founded.  If  the 
writ  has,  in  fact,  been  directed  to,  and  returned  by,  the  proper"' 
jK-rsons,  lrrs-fi'6l~Tcr be" defeated  upon  a  grouncT'so  purely  technicaf. 
It  is  true  the  statute  speaks  of  the  persons  who  are  to  make  the 
a])praisement  as  appraisers;  Har.  Com.  95,  sec.  6;  but  I  do  not 
think  it  was  the  intention  of  the  legislature  to  give  them  a  legal 
cognomen,  by  which  only  they  should  be  known  in  law.  The  term 
"commissioners"  is  a  legal  and  appropriate  designation  of  such 
j)crsons  as  have  commissions,  letters  patent,  or  other  lawful  war- 
rant, to  examine  any  matters,  or  to  execute  any  public  office,  etc. 
I  Jac.  Law  Diet.  507.  But  if  a  certiorari  is  directed  to  the  right 
person,  though  by  a  wrong  name,  he  alone  can  object,  and,  if  in 
fact  he  makes  a  proper  return  to  the  writ,  a  third  person  cannot 
complain  of  the  misnomer;  Daniel  v.  Phillips,  4  T.  R.  499. 

I'jut  the  second  branch  of  this  exception,  viz.  that  the  writ,  or 
writs,  ought  to  have  been  directed  to  the  clerks_of  tlie"  di ff erent 
counties  in  which  the  lands  liCj  is  of  graver  import.   "  ""~ 


§  3  1IIE  PxurriES.  651 

When  this  court  is  called  ui)on  to  exercise  its  superintending 
power  over  inferior  and  summary  jurisdictions,  it  not  infrequently 
becomes  a  question  of  some  difficulty  to  know  to  whom  its  writ 
should  be  directed.  In  4  Vin.  Abr.  339,  cert.  B,  3  Pi.  5,  it  is  said, 
"^certiorari  to  remove  a  record  ought  not  to  be  m,ade -but  to  ajqu 
offi"cer  k^|■)^\•n  to  have  custody  of  the  record,  and  upon  a  surmise 
that  he  haih  such  a  record  in  his  hand."  The  question  then  is,' 
who,  in  legal  contemplation,  has  the  custody  of  the  record,  or 
proceedings,  required  to  be  certified  in  this  case?  To  answer  this 
question  we  must  have  recourse  to  the  statute,  under  which  the 
proceedings  have  been  conducted;  and  there  we  find  it  enacted 
as  follows:  viz.:  "tlie  appraisers,  or  a  majority  of  them,  shall  make 
regular  entries  of  their  determinations  and  appraisal,  in  a  iDook  of" 
Hooks^  to  be  by  them  kept  for  that  purpose ;  and  shall  certify  the 
same  under  their  hands  and  seals,  acknowledging  the  same,  etc., 
and  shall  cause  such  book  or  books,  to  be  filed  in  the  office  of  the 
clerk  of  the  county  in  which  the  lands  may  be  situated ;  there  to 
remain  a  public  record."     Har.  Com.  sec.  6,  96. 

Some  doubt'  was  suggested,  on  the  argument,  whether  the  ap- 
praisers had  actually  filed  their  proceedings  in  the  clerk's  office 
when  the  certiorari  in  this  case  was  sued  out;  and  it  was  argued 
that  as  the  statute  fixed  no  time  within  which  the  appraisers  should 
file  their  proceedings,  the  prosecutors  of  this  writ  were  not  bound 
to  know  they  were  actually  filed  in  the  proper  places  and  offices. 
The  answer,  however,  is  obvious ;  they  sued  out  the  writ  at  their 
peril.  If  they  directed  it  to  persons  who  had  not  the  record,  it  was 
their  own  mistake ;  not  only  so,  for  if  they  sued  out  the  writ  before 
the  commissioners  filed  their  proceedings  in  the  proper  offices,  they 
were  premature.  Until  that  was  done,  the  whole  matter  was  in 
fieri;  it  was  incomplete  and  had  no  legal  efficiency.  It  would  be 
like  the  case  of  freeholders  appointed  to  review  the  return  of  a 
road,  who,  though  they  had  made  out  and  signed  their  certificate, 
had  not  yet  returned  it  to  court.  In  such  a  case  we  have  refused  a 
certiorari;  3  Halst.  R.  139.  The  King  v.  Eaton,  2  T.  R.  285,  was 
cited  to  show  that  a  certiorari  may  be  directed  either  to  the  person 
who  made  the  document,  or  to  him  who  has  the  custody  of  it.  But 
the  case  is  to  the  contrary.  The  justice  certified  a  copy  of  the  con- 
viction, and  gave  as  a  reason  for  doing  so,  that  he  had,  previously 
to  the  coming  of  the  writ,  sent  the  record  itself,  as  it  was  his  duty 
to  do,  to  the  sessions.  The  court  refused  to  quash  the  return  (which 
was  moved  for  by  the  plaintifif  in  certiorari  himself),  on  the  ground 
that  the  writ  had  improperly  issued.  Cases  were  cited  in  our  own 
court,  to  show  that  writs  of  certiorari  have  been  directed  to  per- 
sons not  having  the  legal  custody  of  the  document  required — such, 
for  instance,  as  surveyors  of  the  highways,  in  road  cases;  and 
justices  of  the  peace  in  the  case  of  military  warrants.    But  this  only 


652  MORRIS    CANAL    &    BANKING    COMPANY    V.    THE    STATE.  §    3 

proves  that  the  same  irregularity,  and  want  of  legal  accuracy,  has 
prevailed  in  the  direction  of  the  writ,  and  has  been  shown  to  exist  in 
the  relation  to  the  parties ;  but  it  does  not  prove  that  the  writ  may 
lawfully  be  directed  to  any  party  or  body. 

Upon  the  supposition  that  the  appraisers  had  terminated  ilnir  du- 
ties, and  filed  their  assessments  in  the  proper  offices,  before  the  \\rij; 
was  issued,  (and  if  they  had  not  done  so,  the  writ  \\as  premature j, 
the  writ,  in  my  opinion  was  fatally  niisdir££Led.  'I'he  appraisers  had 
become  fiincti  officio.  Their  proceedings  by  the  terms  of  the  charter, 
had  become  matters  of  "public  record :"  they  had  ceased  to  have  any 
control  over  them,  and  could  not  obey  the  command  of  our  writ . 
They  could  neither  send  us  the  record  itself,  nor  officially  certify 
to  us  even  a  copy  of  it.  They  could,  indeed,  as  in  fact,  they  have 
done,  go  to  the  proper  ofifices,  and  get  copies  duly  certified  by  the 
respective  clerks,  and  annex  them  to  our  writ ;  and  the  crier  of 
the  court  might  have  done  the  same  thing  if  we  had  directed  our 
writ  to  him  ;  but  neither  of  them  could  officially  respond  to  the 
writ.  This  is  not  a  technical  objection,  as  was  said,  but  a  grave  and 
substantial  one j, for  if  a  certiorari  \s  impfoperly  directed,  notKmg 
can  be  removed  by  it.     i  Bac.  Abr.  tit.  Cert.  572,  let.  i.  ~ 

The  JXI_obiection,  is  that  the  return  is  insufficient — it  appearing' 
upon  the  face  of  it,  that  the  papers  sent  up  are  only  copies. 

If  this  objection  is  fatal,  it  only  shows  that  the  writ  was  misdi- 
rected. The  appraisers  had  not  the  custody  of  the  original  docu- 
ments, and  could  not,  therefore,  either  in  fact,  or  in  legal  contem- 
plation, send  them  up.  It  is  true,  wath  some  qualification,  as  was 
insisted  at  the  bar,  and  said  by  the  Chief  Justice  (Kirpatrick)  in 
State  V.  Nichols,  2  South.  542,  that  the  record  is  never  sent  with 
the  writ,  but  only  the  tenor.  But  when  copies  are  sent  by  the 
])roper  officer,  having  the  legal  custody  of  the  record,  they  are  re- 
ceived  and  taken  for  the  record ;  they  are  not  received  as  copies, 
unlesss  the  tenor  only  is  required  b}'  the  writ ;  i  Bac.  Abr.  tit.  Cert. 
572,  let.  H.  and  per  Holt,  Ch.  J.  in  Rex  v.  North,  2  Salk.  565, 
pi.  2.  "It  is  an  error  in  the  clerks  in  London,  that  upon  a  certiorari, 
tlney  return  only  a  transcript,  as  if  the  record  remained  below;  for 
in  C.  B.  though  they  do  not  return  the  very  individual  record 
yet  the  transcript  is  returned  as  if  it  were  the  record  ;  and  so  it  is 
in  judgment  of  law."     4  \'in.  Abr.  tit.  Cert.  340,  341. 

But  this  writ  calls  for  the  records;  and  if  copies  arc  sent, -we 
cannot  act  upon  them  as  such  ;  we  must  intend  them  to  be,  and 
rcrcivc  them  as  the  record,  or  not  receive  tliem  at  all;  for  on  this 
certiorari  we  arc  to  liold  ])lea  of  the  record.  l^)Ut  we  shall  make 
nrr-snch  lep^l  mtcndmcnt  in  this  case,  for  they  arc  sent  here 
merely  as  coi)ics,  and  lluit  too  by  persons  who  could  not  send 
the  nriginals.  This  is  not  apices  h'tis:^aiidi;  a  mere  legal  refinement; 
it  is  a  doctrine  founded  f)^^  this  i)lain  Irtrnl  distinction  that  when  the 


§    4  TLEAUING,   PRACTICE  AND   PROCEDURE.  653 

object  of  the  certiorari  is  not  to  afifect  the  record  itself,  or  where 
the  court  awarding  the  writ,  cannot  hold  plea  of  the  record,  there  the 
tenor  onl}'  is  to  be  certified.  But  where  the  certiorari  is  in  the 
nature  of  a  writ  of  error  as  it  is  in  this  case,  and  the  court  is  to 
hold  plea  of  the  record,  the  record  itself  is  to  be  sent  up ;  to  the 
end,  that  the  judgment  of  the  court  may  conclude  the  record;  4 
\'in.  tit.  Cert.  340,  let.  C.  In  my  opinion  therefore  the  return 
to  this  certiorari  "is  naught"  and  ought  to  be  quashed  or  taken 
off  the  irres.  And  see  Palmer  et  al.  v.  Forsyth,  et  al.  4  Barn  & 
Cres.  401 ;  and  in  10  Eng.  C.  L.  R.  368.     *     *     * 

See  also  State  v.  Fon  du  Lac,  42  Wis.  287;  People  v.  Reddy,  43  Barb. 
(N.  Y.)  540;  State  v.  Howell,  24  N.  J.  L.  519;  People  v.  Queens  Co.  i 
Hill  (N.  Y.)  195;  Commonwealth  v.  Winthrop,  10  Mass.  177;  Peck  .v 
Foote,  4  How.  Pr.  (N.  Y.)  425;  Tiflfany,  In  re,  80  Hun  (N.  Y.)  486; 
Evingston,  hi  re,  2  N.  Dak.   184. 

In  Harris  v.  Whitney,  6  How.  Pr.  (N.  Y.)  175,  the  supreme  court 
held  that  a  judge  of  the  common  pleas,  whose  office  had  expired,  might 
properly  make  a  return  to  the  writ  of  certiorari  and  a  similar  view  was 
announced    in,    People   v.    Hill,    65    Barb.    (N.    Y.)    170. 


Section  4. — 'Pleading:,  Practice  and  Procedure." 

I.     The  pleadings. 

a.     Petition. 

jrHg_jjroceedings  in  certiorari  are  usually  begun  by  filing  a  per 
tition  with  tlie  reviewing  court.  While  there  is  considerable  di- 
versity in  the  statutory  provisions  of  the  respective  state.s  in  the 
procedure  as  well  as  in  the  causes  for  which  the  writ  will  lie,  the 
well  known  rules  of  good  pleading  at  common  law  will  apply  here 
as  in  the  case  of  all  other  extraordinary  remedies.  Sojthe_j3etition 
should  distinctly  allege  all  the  facts  required  to  confer  jurisdiction 
ofTthe  reviewing  court  and  in  e\ery  respect  should  make  out  a 
priiiui  f'lcic  case.  _It_^should  clearly  state  the  lack  of  jurisdiction 
or  tlie  crrcrs  coniplained^'of  tn~the  t'Ofift  "below,  so  that  an  issue  may 
be  feaTtTlN  made  up  fi>r  the  iudgnient  of  the  reviewing  court. 
Usualh'  a  transcript  of  the  record  l)elow,  or  such  parts  thereof  as 
are  necessary  and  material,  should  accotnpany  the  petition. 

The  petition  slinuld  further  allege  a  distinct  injury  to  the  plaintiff; 
notso,  however,  \\liere  ilie  application  is  n]ade  by  the  state.'  The  al- 
lega'tif^ifls  of  error  should  be  definite  and  specific  and  but  one  cause 
of  action  should  be  stated.  In  those  states  where  certiorari  serves 
the  purpose  of  appeal,  the  petition  not  only  sets  forth  the  errors 
of  law  in  the  court  below,  but  errors  of  facts  as  well.     In  such 


654  THE    rETITIOX,    WRIT   AND   RETURN.  §    4 

cases  a  transcript  of  the  entire  evidence  below  is  usually  filed 
with  the  petition.  In  most  of  the  states  it  is  necessary,  by  statute, 
that  the  petition  be  verified;  not  so  at  common  law. 

b.     The  writ. 

The  writ  itself  is  in  the  nature  of  a  mandatory  order  of  the 
reviewing  court  to  the  court  below  commanding  the  latter  to^eml 
up.  duly  certified,  its  record  and  proceedings  in  the  cause  coiri^ 
plained  of.  The  question  of  proper  parties  and  especially  to  whom 
the  writ  should  be  directed,  has  already  been  considered.  The  writ 
should  be  duly  authenticated  by  the  seal  of  the  court  and,  when 
served,  should  be  accompanied  by  a  certified  copy  of  the  order  of 
the  court  allowing  the  same. 

Where  tlie^writ  is  issued  to  review  proceedings  in  a  criminaLcaiisfj 
a  specfal  clause~^duld"be"msefted  directing  "that  the  writ  operate 
as  a  supersedeas  and  stay  of  further  proceedings  and,  if  necessary, 
a  certified  copy  thereof  should  be  served  on  the  officer  having  the 
prisoner  in  custody. 
c.     The  return. 

The  return  in  some  respects  take  the  place  of  the  plea  or  answer 
is  an  ordinary  action  and  is  often  so  designated.  The  return  then, 
in  obedience  to  the  order  of  the  writ,  should  contain  a  correct  state- 
ment of  all  the  proceedings  in  the  cause  certified,  together  with 
such  facts  as  are  material  and  necessary  to  show  jurisdiction  in  the 
trial  court.  The  record  of  the  lower  court  is  properly  a  portion 
of  the  return  and  should  be  duly  certified  as  to  its  correctness  by 
the  judge  or  clerk  of  the  inferior  court.  Where  the  record  is  no 
longer  in  the  possession  of  the  party  to  whom  the  writ  is  directed, 
or  for  other  reasons  the  same  cannot  be  transmitted  to  the  review- 
ing tribunal ;  it  is  a  sufficient  return  to  state  such  facts. 

As  to  what  shall  go  to  make  up  a  sufficient  record,  depends 
wholly  upon  the  question  involved  and  the  purpose  for  which  it  is 
sought  to  use  the  writ.  To  the  common  law  writ  a  complete  return 
of  a  transcript  of  the  proceedings  below  should  be  made,  and  this 
without  any  alteration,  diminution  or  amendment.  When  a  return 
of  the  record  below  has  once  been  made,  every  presumption  is 
entertained  in  favor  of  its  correctness  and  conclusiveness ;  and  this 
is  as  true  of  statutory  tribunals  and  cjnasi  judicial  bodies  or  officers 
as  of  regular  courts. 

While  a  return  is,  strictly  speaking,  not  subject  to  amendmient, 
yet  in  many  states  this  object  is  accomplished  by  supplemental  re- 
turns, which  arc  often  freely  allowed. 


2.     Procedure  in  obtaining  the  writ. 

Where  not  changed  by  statute  the  procedure,  upon  filing  the 
petition  is  to  have  an  ex  parte  hearing  and  if  the  petition  makes 
out  a  priiiui  facie  case,  to  issue  the  writ. 


§    4  PLEADING,    PRACTICE  AND   PROCEDURE.  C55 

In  the  absence  of  statutes  to  the  contrary,  no  notice  of  fiUng  th^ 
pefition  need  be  given  the  defendant,  for  if  the  writ  is  erroneously 
or  improvidently  issued,  it  may  be  quashed.  In  many  states, 
however,  either  by  statutes  or  rules  of  practice  notice  is  required 
to  be  given  the  other  party  or  a  rule  nisi  is  made  upon  the  petition 
and  defendant  is  given  an  opportunity  of  being  heard  before  the 
writ  itself  issues.  The  right  of  notice  may,  of  course,  be  waived  by 
an  appearance  and  going  to  hearing  on  the  merits. 

While  no  bond  .was  required  at  common  law,  yet  now  in  many 
states,  especially  where  as  in  criminal  cases  the  writ  is  to  operate 
as  a  supersedeas,  it  is  necessary  that  the  plaintiff  give  a  bond  to 
indemnify  the  opposite  party  and  to  secure  the  payment  of  costs, 
before  the  writ  will  issue. 


3.     General  matters  of  practice. 

a.     Issued  in  vacation  or  at  chambers. 

In   re   eighth   STREET,   IN   THE  CITY   OF   OAKLAND, 
SMITH  ET  AL.  V.  COUNCIL  OF  OAKLAND. 

1871.     Supreme  Court  of  California.     40  Cal.  481. 

Wallace,  J.,  delivered  the  following  opinion.  Temple,  J.,  con- 
curring : 

It  appears  by  the  record  that  in  August  last  a  petition,  duly 
verified;  was  filed  in  the  office  of  the  clerk  of__this  court. 
pfaytfi1;^t"ha1r-a  writ  of  certiorari  he  issued  directed  to  the  council 
of  the  city  of  Oakland,  commanding  them  to^  certify  to  the^court 
certain  proceedings  had  by  them  in  opening,  lengthening  and  widen- 
ing eighth  street,  etc:  and  thereupon  the  order  of  one  of  the  justices 
of  the  court,  the  writ  issued  in  the  usual  form. 

Objection  is  now  made  on  the  part  of  the  respondents  that 
the  writ  was  not  issued  in  accordance  with  the  requirements  of 
■faw,  and  that  the  same  ought  to  be  dismissed. 

The  objection  is  based  upon  the  proposition  that  a  justice  of 
this  court  has  no  authority  to  entertain  a  motion  or  application  for 
this  writ,  as  a  proceeding  before  him  in  vacation,  but  that  such  a 
motion  must  always  be  made  in  open  court  and  before  the  court 
in  actual  session. 

The  issuance  of  the  writ  of  certiorari  is  an  exercise  of  original 
jurisdiction  by  this  court,  and  its  authority  to  do  so  is  derived 
from  the  provisions  of  the  constitution. 


656  IN    RE    EIGHTH    STREET    V.    COUNCIL    OF    OAKLAND.  §    4 

It  will  be  seen,  by  an  examination  of  the  constitution  as  it  stood 
previous  to  the  amendment  of  the  year  1862,  that  the  powers  of 
the  court  (except  in  proceedings  concerning  the  writ  of  habeas 
corpus)  where  wholly  of  an  appellate  character  (Art.  VI,  sec.  4), 
and  were  limited  to  the  direct  exercise  of  appellate  authority  and  to 
the  issuance  of  "writs  and  process  necessary  to  the  exercise  of 
their  appellate  jurisdiction." 

The  issuance  of  the  writ  of  certiorari  presupposed  that  the  juris- 
diction of  this  court  to  hear  and  determine  the  case  in  which  it 
was  issued  had  already  fully  attached,  and  it  was  only  to  aid  and 
further  the  exercise  of  that  jurisdiction,  and  not  to  obtain  any  new 
or  additional  authority  over  the  case  that  the  writ  was  directed 
to   issue. 

It  wnll  be  observed,  too,  that  not  only  the  court,  but  each  of  the 
justices  of  the  court,  as  contra-distinguished  from  the  court  itself, 
had  the  constitutional  authority  to  issue  the  writ  in  aid  of  the 
exercise  of  the  appellate  jurisdiction  conferred. 

By  the  constitutional  amendment  of  1862  introduced  a  new^ 
feature  and  accomplished  an  important  change  in  this  respect.  It 
not  only  extended  the  appellate  power  of  tliis  court,  to  subjects  not 
heretofore  embraced  within  its  authority,  but  it  conferred  upon  the 
court,  for  the  first  time,  the  power  to  issue  writs  of  mandamus, 
certiorari,  and  j^rohibition,  as  a  court  of  original  jurisdiction,  and 
irrespective  of  the  circumstance  that  its  appellate  jurisdiction  had 
or  had  not  already  attached  in  the  particular  case. 

I  lliiiik  that  it  is  demonstrable  from  a  careful  consideration  of 
the  lan!4uapc,  in  which  this  original  furTsdictjon  is  conferred,  tlia.t 
while  it  was  the  intention  that  writs  of  habeas  corpus  might  as 
theretofore,  be  issued  by  the  court  or  any  6t  the  justices,  all  oi  tne 
other  enumerated  writs  must  be  issued  under  the  direction  and 
aiithority  of  the  court  itself,  sitting  as  a'°T6urt,  and  not  by  its 
justices  as  such  or  any  of  them. 

•-The  amendment  is  as  follows:  "The  supreme  court  shall  have 
appellate  jurisdiction.  *  '■'  '•'  The  court  shall  also  have  power 
to  issue  writs  of  mandamus,  certiorari,  prohibition  and  habeas  cor- 
pus, and  also  all  writs  necessary  or  proper  to  the  complete  exercise 
of  its  api)ellate  jurisdiction.  Each  of  the  justices  shall  have  power 
to  issue  writs  of  hahcas  corpus  to  any  ])art  of  the  state,"  etc.  (Art. 
VI,  sec.  4,  as  amended. ) 

It  is  to  be  observed  upon  ibis  reading,  that  all  tlic  appellate  power 
is  conferred  u])on  the  court,  and  not  an\-  of  it  on  the  justices  com- 
posing it. 

1  think  it  will  not  be  inlrndcd  that  the  constitution  intended 
to  clothe  any  or  all  of  tlic  jnslici's,  as  contradistinguished  from  the 
court  itself,  willi  a])i)cllate  power  over,  or  jurisdiction  to  hear  or 
determine   anv   case   "in    ('(initx,"   or    wbicli    involves    "the   title   or 


§    4  PLEADING,    I'RACTICE   AND   PKOCEDLKK.  65/ 

possession  of  real  estate, '  etc.  The  expression  of  the  constitution 
in  conferring  the  authority  to  issue  writs  of  mandamus,  certiorari 
and  prohibition  is  not  less  clear  in  its  import.  "The  court  shall  have 
power  etc."  If  it  had  been  intended  that  the  justices  of  the  court,, 
as  mere  judicial  officers,  should  exercise  this  power,  that  intention 
has  certainly  found  no  direct  expression  in  the  constitution,  and  any 
rule  of  construction  which  would  deduce  the  power  from  the 
words  employed  in  the  instrument  itself  would  also  be  potent  to 
maintain  that  the  general  appellate  power  mentioned  in  the  preceding 
clause  of  section  4,  is  conferred  not  only  upon  the  court  but  upon 
the  justices  as  well — for  we  have  seen  that  there  is  nothing  in  the 
language  employed,  nor  in  the  context  or  subject  matter,  which 
under  any  known  rule  of  construction,  can  distinguish  the  one 
proposition  from  the  other.  This  is  plain  of  itself;  but  if  there 
could  be  any  doubt  remaining  upon  the  subject,  it  will  be  removed 
by  looking  again  at  the  last  clause  of  section  4,  already  cited.  The 
power  to  issue  the  writ  of  habeas  corpus,  like  that  to  issue  the  writ 
of  mandamus,  certiorari  and  prohibition,  is  there  conferred  on  the 
court ;  but  it  is  immediately  afterward  declared  that  "each  of  the 
justices  shall  have  power  to  issue  writs  of  habeas  corpus,  etc."  The 
language  of  this  clause  makes  it  evident  that  the  authors  of  the 
amendment  of  1862  had  in  view  the  distinction  between  the  court 
and  the  justices  who  compose  it ;  and  they  imderstood  that  the 
power  thereinbefore  given  to  the'  court  to  issue  the  writ  of  habeas 
corpus  did  not,  of  itself,  fairly  import  a  similar  authority  conferred 
upon  the  justices.  It  is  apparent,  too,  that  when  they  came  to  confer 
upon  the  justices  of  the  court  the  authority  to  issue  the  writ  of 
habeas  corpus,  they  singled  out  that  writ  from  all  the  others  with 
which  they  were  then  dealing,  and  ex  industria  omitted  those  others. 

I  am  therefore  of  opinion  that,  under  the  provisions  of  the  consti- 
tution, a  writ  of  certiorari  can  be  rightfully  issued  from  the  office 
of  the  clerk  of  this  court  only  upon  an  order  of  the  court,,  upon 
application  made  for  that  purpose,  and  that  the  twenty-fifth  rule 
of  this  court,  providing  that  the  writ  may  be  issued  by  the  clerk 
upon  the  filing  of  a  petition  therefor,  cannot  be  supported. 

It  results  that  the  writ  must  be  dismissed,  and  it  is  so  ordered. 

In  accord. — Rodman  v.  Austin,  7  N.  Car.  252;  People  v.  McDonald,  2 
Hun  (N.  Y.)  70;  Overseers,  etc.,  v.  Sutton,  32  N.  J.  L.  295;  State  v.  Senft, 
2  Hill    (S.   Car),  367. 

Xhe.j:eaaou  underlying  the  denial  of  the  right  to  issue  the  writ  at  cham- 
bers or  in  vacation  as  expressed  in  a  number  of  cases,  is  that  the  granting 
of  the  writ  being  a  discretionary  matter,  such  discretion  is  to  be  exercised 
by  the  whole  court,  after  an  inspection  of  the  petition  or  application  and 
not   by   a   single   Judge. 

Tn  many  of  the  states,  however,  either  by  virtue  of  the  statute  or  peculiar 
rules  of  practice,  the  writ  may  be  issued  by  a  single  judge  at  chambers 
or  in  vacation,  returnable,  of  course,  to  the  court  in  banc.  The  writ,  when 
r>o   issued   operates   practically   as   a   rule   nisi,  and   if   it   appears   upon   the 


658  STATE  V.    SCHNEIDER   ET   AL.  §    4 

return  that  the  writ  was  improvidently  granted  or  that  no  prima  facie  case 
has  been  made  out,  it  will  be  quashed.  This  is  the  practice  in  Missouri 
and  a  number  of  other  states. 


h.     Issued  before  or  after  final  judgment  below. 
STATE  V.  SCHNEIDER  et  al. 
1891.     Court  of  Appeals  of  Missouri.     47  Mo.  App.  669. 

(So  MUCH  of  the  opinion  as  relates  to  the  right  to  review  con- 
tempt proceedings  upon  appeal  or  writ  of  error,  is  omitted.) 

RoMBAUER,  P.  J. — The  defendants  are  judges  of  the  county  court 
of  Cape  Girardeau  county,  who  were  fined  by  the  circuit  court  for 
contempt  for  wilf Lilly  disobeying  its  orders  lawfully  issued.  The\^ 
Iia^e' sued  out  this  writ  of  error  and  assigned' foi-"err6r,~that  the 
order 'of  the  circuit  court  which  they  are  charged  with  having"  dis- 
obeyed, was  not  lawfully  issued,  and  that  it  appears  by  the  record, 
that  they  were  not  guilty  of  its  wilful  disobedience.  The  plaintifif 
maintains  the  affirmative  of  both  these  propositions,  and  asserts  in 
addition  that  the  judgment  in  the  contempt  proceedings  is  riot  sub- 
ject to  review  upon  appeal  or  writ  of  error,  and  hence  this^'writ 
should  be  dismissed. 

*  *  *  On  the  other  questions  presented,  the  following  facts 
appear  by  the  record, — Two  applications  for  the  issue  of  annual 
dramshop  licenses  were  presented  to  the  count}'  court  in  August 
1889.  The  applications  were  accompanied  by  petitions  purporting 
to  be  signed  by  the  requisite  number  of  taxpaying  citizens,  but 
the  petitions  failed  to  state  that  the  signers  were  assigned  taxpapers, 
wherein  they  failed  to  show  on  their  face  that  the  signers  were 
such  as  the  statute  required.  A  number,  of  citizens  apjicared  as 
objectors,  before,  the  county  Cdurt,  and  resisted  the  appHcattoiTs' aiTd 
approval  of  the  petitions,  both  upon  the  ground  that  the  petitions 
were  insufficient  upon,  their  face,  and  that  they  were  signed"  by 
persons  not  qualified  under  the  statute.  The  county  court  heard 
the  objections,  sustained  them  in  part,  and  overruled  tlieni  in  part, 
and  ap[)rovcd  the  petitions,  but  took  no  further  steps  toward  grant- 
ing a  license  at  the  time.  The  order  of  the  county  court  a])proving 
the  petitions  also  failed  to  find  that  the  petitions  were  signed  by 
the  requisite  number  of  assessed  taxpayers.  The  objectors  there- 
upon applied  to  the  circuit  court  for  a  writ  of  certiorari  to  remove 
the  proceedings  to  that  court,  and  upon  their  statement  that  the 
county  court  was  exceeding  its  jurisdiction  in  the  premises,  and 
that  the  attorney  general  and  circuit  attorney  declined  to  inter- 
fere, the  circuit  court  issued  its  writ  of  certiorari,  removing  the 
cases  to  the  circuit  court. 


§  4  PLEADIXGj  PRACTICE  AND  PROCEDURE.  659 

Jt  is  not  questioned  but  that  the  objectors,  imdgj,  .the.  decisiQnjSf 
this  coufFTn  State  v.  Heege,  37  Mo.  App.  338,  had  a  standing  in  the 
circuit  court,  providing  the  .issue  of  the  writ  was  not  premature. 
The  only  difference  between  that  case  and  the  present,  touching 
that  question,  consists  in  the  fact,  that  there  the  writ  issued  after 
the  granting  the  Hcense,  and  in  the  present  case  the  writ  issued 
before  the  granting  of  the  Hcense,  but  after  the  petition  for  the 
Hcense  was  approved.  The  defendants  claim  that  the  circuit  court 
had  no  jurisdiction  to  remove  the  proceedings  from  the  county 
court  before  something  was  done  therein  in  the  nature  of  a  final 
judgment  or  order,  and  that  a  final  order  in  a  case  of  this  kind 
is"the  granting  of  the  license.  The  defendants  further  claim  that 
the  order  of  the  circuit  court,  embodied  in  the  writ  of  certiorari, 
"to  stop  all  further  proceedings  in  said  cause,"  was  unwarranted 
by  law,  and  was  not  an  order,  "lawfully  issued"  within  the  purview 
of  the  statute  touching  criminal  contempts. 

The  papers  in  the  two  causes  were  transmitted  to  the  circuit 
court  in  obedience  to  the  writ  of  certiorari.  At  a  subsequent  term 
SFtTTe  county  court  the  defendants  composing  said  court  took  up  the 
two  applications  for  license,  and,  although  the  objectors  appeared 
and  protested,  defendants  approved  the  applications  and  granted  the 
licenses  required,  whereupon,  tTie  objectors  caused  them  to  be  at- 
tached for  contempt,  and  the  circuit  court  rendered  the  judgment 
against  them  for  contempt,  to  reverse  which  the  defendants  prose- 
cute this  writ. 

^-THe  first  question  to  be  determined  is  whether  the  issue  of  the 
writ  of  certiorari  by  the  circuit  court  to  the  county  court,  at  the 
stage  of  the  proceedings  at  which  the  writ  was  issued,  was  a  pro- 
ceeding warranted  by  law. 

The  writ  of .  c^ri/aranj  except  in  cases  otherwise  provided  by 
statute,  Is   in  the  nature  of  a   writ  of  error  with   this   difference, 

""that  it  brings  up  only  the  record  of  the  inferior  tribunal  for  inspec- 
tion, and  the  trial  upon  it  is  a  trial  of  questions  jurisdictional  in 

"ThFlf  iiature,  and  not  a  trial  dc  novo  except  of  matters  affecting  the 
jurisdiction  of  the  court.  Britton  v.  Steber,  62  Mo.  370;  R.  R. 
Co.  V.  Young,  96  Mo.  39;  State  v.  Smith,  loi  Mo.  174;  State  v. 
Police  Commissioners,  14  Mo.  App.  297.  At  common  law,  when  the 
writ  was  issued,  not  as  ancillary  to  other  process,  it  was  a  writ 
in  the  nature  of  a  writ  of  error  addressed  to  inferior  tribunals  whose 
procedure  was  not  according  to  the  course  of  the  common  law. 
2  Wait's  Actions  &  Defenses,  134.  As  in  this  state  no  provision 
is  made  by  statute  regulating  proceedings  upon  such  writs,  we  must 
assume  that  they  are  the  same  as  at  common  law,  and  that  the  writ 
wTien  not  ancillary  to  other  proceedings,  can  issue  on  filial  Judi^mcnts 
onlj.  Thsit  we  understand  to  be  the  comiiiori-law  rule.  Lynde  v.  \o- 
BTe,  2  Johns.  80 ;  Cuyler  v.  Trustees  of  Palmyra,  3  Hun.  549 ;  Palms 


66o  STATE  V.    SCHNEIDER   ET   AL.  §    4» 

V.  Campau,  ii  :\Iich.  109;  People  v.  County  Judges,  etc.,  40  Cal. 
479.  That  such  is  the  correct  view  must  be  still  more  evident  in 
view  of  the  fact,  that  in  this  state  appeal  or  error  lies  from  final 
judgments  only. 

Now  the  approval  of  the  petitions  by  the  county  court  was  in 
no  sense  a  final  order  or  judgment.  It  was  under  the  statute  still 
discretioriarv  with  the  county  court  tc  issue  tlie  licenses  or  not. 
since  the  petitions  do  not  purport  to  be  signed  by  two-thirds  of 
the  tax-paving  citizens  within  the  town  and  block  where  the 
dramshops  were  to  be  kept.  R.  S.  1889,  sec.  4572.  Nor  had  the 
court  passed  on  the  applicant's  bond,  the  approval  of  which  is  a 
condition  precedent  to  granting  the  license,  and,  until  the  court  had 
finally  disposed  of  the  case,  proceedings  therein  could  not  be  reniored 
by  certiorari  to  the  circuit  court  or  any  other  court  either  at  common 
Taw  or  under  any  statute  in  this  state  The  attempt  at  removal 
was  premature  and  unwarranted  and  the,  order  contained  therein 
to  stop  further  proceedings  was  not  an  order  lawfully  issued  by  the 
circuit  court  within  the  purview  of  the  statute  on  the  subject  of 
criminal  contempt. 

Whether  the  writ  in  a  proper  case  will  operate  as  a  supersedeas 
without  bond,  is  a  question  on  which  the  authorities  are  not  quite 
agreed :  Lynde  v.  Noble,  supra.  The  question  must  necessarily 
depend  upon  the  nature  of  the  proceedings  sought  to  be  affected 
by  the  writ. 

As  a  seeming  conflict  exists  between  what  is  said  in  the  opinion 
of  this  court  in  State  v.  Heege,  supra,  and  in  the  opinion  of  the 
Kansas  City  Court  of  Appeals,  in  State  v.  Cauthorn,  40  Mo.  App. 
94,  we  deem  it  proper  to  add  that  in  our  opinion  the  decisions. in 
this  state  go  no  further  than  to  hold  that  the  jurisdiction  of  inferior 
tribunals  must  api)ear  by  some  part  of  the  record  of  their  proceed- 
ings. Jefiferson  Co.  v.  Cowan,  54  Mo.  234 ;  Zimmerman  v.  Snow- 
den,  88  Mo.  218,  and  that  it  is  not  essential  that  such  jurisdiction 
should  a])pear  from  any  specified  part  of  the  record.  Neither 
in  the  Pleege  case  nor  the  case  at  bar  did  the  jurisdiction  appear 
by  any  part  of  the  record,  and  as  the  licenses  were  vacated  in  the 
TIeege  case,  so  they  might  properly  have  been  vacated  in  this, 
on  the  proi)er  proceedings  for  that  purpose. 

It  results  from  the  foregoing  that  the  judgment  of  the  circuit 
coiirf  Th  finifig  t1io  defendants  for  contempt  was  erroneous  as  a 
matter  of  law,  and  must  be  reversed.  So  ordered.  All  the  judges 
concur. 

In  accorrl. — State  v.  F.dwards  104  Mo.  125;  Cuyler  v.  Trustees,  etc.,  .■? 
Hun  (N.  Y.).  549;  Lloyd  v.  Spurrier,  103  Iowa,  744;  I<>cridee  v.  Berrys, 
93  f'<i-  760;  Cowen  v.  Wildwood,  60  N.  J.  L.  365;  State  v.  Valliaut,  123 
Mo.  524. 


f  4  PLEADING,    PRACTICE  AND   PROCEDURE.  66l 

MOWERY  V.  CITY  OF  CAMDEN. 

1886.     Supreme  Court  of  New  Jersey.     49  N.  J.  L.  106;  6  Atl. 

438. 

Dixon,  J. — The  certiorari  brings  up  proceedings  before  an  alder-^, 
man  of  the  city  of  Camden  designed  to  punish  the  prosecutrixv) ' 
■for-vlolallbri  of  a  city  ordinance  passed  June  12,  1884,  in  regard  tOj  (i;^,';,»^' 
the  sale  of  Hquor.  The  ordinance  (section  18)  authorizes  any  person  T 
to-^be  proceeded  against  before"  an  alderman,  upon  proof  being 
made,  by  affidavit,  of  the  violation  of  any  of  its  provisions,  whereupon 
the  alderman  is  by  his  warrant  to  require  the  person  accused  to  be 
brought  before  him,  and  is  to  hear  and  determine  in  a  summary  way 
the  guilt  or  innocence  of  the  person  so  charged.  One  of  the  provi- 
sions of  the  ordinance  (section  10)  is  that  whosoever  shall  sell 
any  spirituous,  vinous  or  malt  liquors  in  less  quantity  than  a  quart, 
without  having  first  obtained  a  license  therefor,  shall  be  punished  by 
a  fine  of  $50,  or,  in  default  of  payment,  by  ten  days'  imprisonment. 
Another  provision  (section  12)  is  that  if  any  person  licensed  under 
the  ordinance  shall  sell  to  a  minor  any  spirituous,  vinous  or  malt 
liquor,  he  shall  pay  a  fine  of  $100,  or,  in  default  of  payment,  be  im- 
prisoned ten  days. 

In  the  present  case,  the  affidavit  filed  with  the  alderman,  was  as 
follows :  "Camden  City  and  County — ss. :  John  Wood  upon  his 
mth  complains  thatj^e  has,^g,22^r^^S0JllQ-b£lieve.  and  docs  verily  be- 
Tieve.  that  on  March  10,  1885,  at  said  city,  one  Mary  Mowery  did 
knowm^ff  and  unlawfully  sell,  and  offer  for  sale  spirituous  liquors, 
vinous  and  malt  liquors,  towil,  one  gill  of  brandy,  to  one  James 
Thomas,  a  minor  under  the  age  ofT\venty-one  years,  contrar}'  to  ana 
In  violation  of"  the  before  mentioned  ordinance.  On  this  affidavit  the 
magistrate  Tglued  his  warrant,  the  prosecutrix  was  arrested,  and  a 
day  set  for  her  hearing.     Thereupon  she  obtained  this  certiorari. 

Under  our  prior  adjudications  it  is  plain  that  this  affidavit  fur- 
nished no  legal  support  to  the  proceedings  of  the  magistrate.  The 
ordinance  requires  as  preliminary  to  a  warrant,  proof  by  affidavit, 
of  some  violation  of  its  provisions,  while  the^  affidavit  tendered 
proof  only  of  the  affiant's  belief,  and  his  opinion  of  its  reasonable- 
iTe??r  Tills  was  fatally  insufficient,  since  the  affidavit  was  to  con- 
sll:S'vvte**a.  charge  \vhereupon  to  base  a  conviction.  Robertson  v. 
Lambertville.  38  N.  J.  L.  69.  Moreover  if  the  affidavit  was  designed 
to  formulate  a  complaint  for  violating  the  tenth  section  of  the 
ordinance,  it  should  have  averred  that  the  accused  had  sold,  without 
having  first  obtained  a  license  to  sell,  (Greeley  v.  Passaic,  42  N. 
J.  L.  87;  Fleming  v.  New  Brunswick,  47  N.  J.  L.  231.);  while 
if  a  violation  of  the  twelfth  section  was  in  view,  an  averment  that 
she  had  been  licensed  under  the  provisions  of  the  ordinance  was 
requisite,  according  to  the  words  of  the  section.     It  must,  indeed. 


662  MOVVERY   V.    CITY   OF   CAMDEN.  §    4 

be  admitted  that,  if  the  matters  believed  by  the  affiant  were  true, 
the  person  charged  was  guilty  of  an  offense ;  for  the  sale  of  a  gill 
of  brandy  to  a  minor  in  the  city  of  Camden  was  a  prohibited  act. 
But  it  is  not  enough  for  a  criminal  complaint  to  aver  rneje  guiltir 
ness  in  the  accused;  it  must  allege  a  specific .p.flfillse^-.scT that  The 
accused  "may  know  how  to  prepare  his  defense,  if  he  have  any,~ 
and  so  that  the  court  may  be  able  to  render  the  legal  judgment 
on  conviction.  This  charge  would  answer  neither  purpose.  If  ' 
the  accused  was  to  be  tried  for  violating  the  tenth  section,  proof 
by  her  of  the  majority  of  the  vendee,  would,  be  of  no  avail,  but 
proof  of  a  license  would  be  a  complete  defense.  I£  she  was  to  be 
tried  under  the  twelfth  section,  then  proof  by  her  of  a  license  would 
be  of  no  avail,  but  proof  of  the  majority  of  the  vendee  would  be 
a  complete  defense.  If  the  accused  had  come  before  the  alderman, 
and  confessed  the  truth  of  the  affiant  s  belief,  the  magistrate  could 
not  have  judicially  decided,  whether  to>  impose  the  fine  of  $50  under 
the  tenth  section,  or  the  fine  of  $100  under  fhe  twelfth  section. 
If  she  was  licensed,  the  latter  penalty  was  the  legal  punishment; 
if  she  was  unlicensed,  the  former  penalty  is  the  one  prescribed ; 
but  whether  she  was  licensed  or  not,  neither  the  charge  nor  her 
confession  would  indicate.     Such  a  complaint  was  fatally  defective. 

The  insutficiency  of  the  complamt  being  thus  mainifest,  the  de- 
fcndant  nevertheless  contends  that  the  ceflidrart  was  "preniature^be- 
cause  allowed  before  convictioUj  and  for  that  reason  should  now  be 
dismissed.  The  rule  on  this  subject  is  stated  by  <!^hief  Justice  Horn- 
blower,  in  Hinchman  v.  Cook,  20  N.  J.  L.  272,  to  be  that,  "a  cer- 
/JQ^raW^  at_the  comnion  law,  goes  to  special  and  summary  tribunals, 
and  brings  up  the  whole  or  any  part  of  their  proceedings,  according  • 
to  the  command  and  exigency  of  the  writ;  and  such  writ  may  he 
issued  before  the  inferior  tribunal  has  consummated  its  authority.  Cut 
a  writ  of  error,  or  a  certiorari  substituted  by  statute  for  that  writ, 
cannot  go  for  part  only  of  the  record,  nor  before  final  judgnijent." 
The  same  rule  was  enunciated  by  the  court  of  errors  in  Hoxsey  v. 
Patterson,  39  N.  J.  L.  489,  and  is  therefore  settled.  The  theory 
adopted  in  this  state,  as  1  understand  it  is,  that,  when  a  certiorari  is 
used  as  a  statutory  substitute  for  a  writ  of  error,  it  cannot  legally 
issue  until  after  final  judgment  below.  When  the  object  is  to  remove  a 
cause  to  l>e  continued  in  this  court,  a  certiorari  in  criminal  matters, 
and  a  habeas  corpus  cum  causa  in  civil  matters,  is  the  appropriate 
writ,  although  sometimes  in  the  latter  class  certiorari  has  been  used. 
Chandler  v.  Monmouth  liank,  9  N.  J.  L.  loi.  When  the  purpose 
is  to  review  the  proceedings  of  a  special  tribunal,  on  complaint  of 
irregular  procedure  in  matters  legally  brought  within  its  jurisdiction, 
a  certiorari  may  legally  issue  before  final  decision,  but  ordinarily 
.should  not  be  allowed  until  then,  for  haiily  the  tribunal  may  correct 
its  own  error  in  time.     When  the  design  is  to  reverse  proceedings 


§    4  PLEADING,    PRACTICE   AND    PROCEDURE.  663 

of  Special  tribunals  in  uiaticrs  not  Ici^ally  brought  zvithin  their  juris- 
ITUl'iun,  then  the  icrit  of  certiorari  may  legally  and  should  ordinarily, 
he  alloiccd  zohen  asked  for,  either  before  or  after  filial  decision, 
Iilwuisc  eachs'fep~m  ^uch  proceedings  is  a)i  unlawful  vexation  of  the 
party  prosecuted,  against  zchich  this  zirit  is  his  sole  protection. 
l*lTe  discretion  of  this  court  in  the  allowance  and  dismissal  of  the 
writ,  and  now  also  with  rej^ard  to  costs  on  final  judgment,  affords 
an  adequate  safeguard  against  any  abuse. 

Under  the  rule  laid  down  in  Hinchman  v.  Cook,  and  Hoxsey  v. 
Patterson,  iibi  supra,  the  legality  of  the  issuance  of  the  present  writ 
is  clear.  It  was  allowed,  not  as  a  statutory  writ  of  error,  but  by 
the  common  law  power  of  the  court,  to  inquire  into  the  acts  of  a 
special  and  summary  tribunal  which  w^as  proceeding  against  the 
prosecutrix  upon  a  complaint  that  gave  it,  and  could  give  it,  no 
legal  authority  to  proceed.  In  a  proper  sense,  it  may  be  said  that  the 
magistrate  had  not  acquired  legal  jurisdiction  over  the  cause.  The 
case  wias  only  colorably,  not  really,  under  his  jurisdiction.  In 
view  of  the  fact  that  the  proceedings  if  carried  on  to  a  conviction, 
threatened  an  immediate  and  unlawful  imprisonment  of  the  prose- 
cutrix, _for  which,  however,  tlie  law^  according  to  Grove  v.  Van 
D'uyn,  44  X.  J.  L.  (>^4.  which  would  give  her  no  redress  I  do  not 
think  discretion  was  improvidently  exercised  in  allowing  the  writ 
at  the  threshold.  Certainly  no  useful  result  can  be  attained  by  now 
dismissing  it. 

The  proceedings  below^  should  be  reversed,  but,  since  no  applica- 
tion was  made  to  the  magistrate  to  dismiss  the  complaint  before 
suing  out  this  writ,  no  costs  will  be  awarded. 

See  also  Gushing  v.  Gay^  23  Me.  9;  West  River  Bridge  Go.  v.  Dix,  16 
Vt.  446;  Rutland  v.  Worcester,  37  Mass.  71;  State  v.  Paterson,  -^g  N.  J. 
L.  489. 

e.     Verity  of  record. 


IN  RE  EVINGSON. 

1 891.     Supreme  Court  of  North  Dakota.     2  N.  Dak.  184;  49  N. 

W.  733- 

Bartholomew,  J. — The  facts  giving  rise  to  this  case,  briefly 
stated,  are  as  follows  :-^One  A.  W.  Kuhn  was  justice  of  the  peace 
in  Norman  township,  CassJ^^ouhTyr^An-actiofl  was  properly  brought; 
on  ior  trial  Jbelore  saig~i uHicr'and  a  jury  on  Janu'airy  3^  iggot 
21  n  point  in-gajd  township  agreed  upon  by  the  parties  thereto,  and 
m  which  tlie  petitioner  in  this  case  was  one  of  the  defend- 
■JlTft?.     resulting    in     a     judgment    against    said._defendants.       On 


664  I^   ^E  EVINGSON.  §    4 

March  22,  1890,  ^the^edtipaer  obtained  from  the  judge^  oi ..the.  dis.t^ 
trict  court  of  Cass  County,  a  writ  of  c^r/iorarj  to_rgvi.e-W-JJie_Saiii 
■judgment.     In"  the   interim  the   term  of  office  of   said   Kuhn   had 

"^  expired,  and  his  dockets  had  passed  into  the  possession  of  his  succes- 
sor, one  William  G.  Dance.    The  writ_was^ directed  fo  Justice  Dance 

"Yequiring  him  to  send  up  a  transcript  of  the  records  and  proceed- 
ings in  the  case  and  all  of  the  pleadings  and  papers  on  file  in  his 
office  relating  thereto.  The  return  of  this  officer  to  the_  writ. 
showed  a  complete  and  legal  judgment.  J^^very  entry  _wimi[i_lhc_- 
law  required  should  be  made  load  been  made.  We  do  not  under- 
stafid' tnat  this  questioned.  At  the  end  of  the"'formal  judgment  and 
preceding  the  signature  of  the  justice,  were  the  words  "Dated  at 
Kindred,  Cass  County,  N.  D.,  January  3,  1890,"  Kindred  is  a  vil- 
lage in  Norman  township.  When  this  j;etuniw^s  in,  pptitlonpr  ;]^p- 
plied  for  and  obtained  a  sui5plemental  writ^  directed  to  Ex-Justice 
Kuhn,  "requiring  him  to  return  a  full  statement  of  all  his 'proceed- 
ings in  the  said  action.  .This_3iip.pl£m£utal.  writ  was  issued  upon 
an  affidavit  tending  to  show  that  the  statements  in  the  record  were^ 
in^fact-false.' "  W'hen  the  response  of  ]\Ir.  Kuhn  to  the  supplemental - 
Avrirrra^  returned,  it  stated  that  when  the  verdict  of  the  jury  was 
returned,  he  adjourned  court,  without  fixing  time  or  place  of 
further  meeting,  and  took  his  docket  and  went  to  tlie  city  of  VVali^ 
peton,  in  Richland  county,  where  on  January  5,  iS()0,  tlie  judgmeiit 
"wa^  entered  and  signed.  Jf  the  statements  coniainod  in~tlie  retiirp 
of  Ex-Justice  Kuhn  be  true,  he  lost  jurisdiction  of  tlic  case  when 

"Ire^adjonrned  as  stated,  and  all  liis  snliscqncnt  acts   were  witliouL. 
authority.     Our  statute — section  6104,   Comp.   Laws— Requires  the 

~'jnstTcc;"^vhen  !i  trlJll  is  by  jury,  to  enter  judgment  at  once  m  ac- 
cordance with  Ibc  verdict;  and  liy  section  (\\i*)  tliis  judgment  must 
include  ihc  costs  allowed  by  law  tcj  the  prevailing  party.  These 
provisions  are  mandatory.  Hull  v.  Mallory,  56  Wis.  355,  14  N.  W. 
374;  McNamara  v.  Specs,  25  Wis.  539;  Brady  v.  Taber,  29  Mich. 
199.  Nor  could  Justice  Kuhn  legally  enter  judgment  or  tax  costs 
or  exercise  any  other  judicial  fimction  outside  of  the  township 
and  county  for  which  he  was  elected.  Section  6041,  Comp.  Laws, 
requires  justices  of  the  i)eace  to  keep  their  offices  and  hold  their 
courts  at  some  place  w  ithin  such  county  and  township ;  and  for  a 
construction  of  similru"  ])ro\isions,  see  State  v.  Marvin,  26  Minn. 
32.3.  3  N.  W.  991  ;  Phillips  v.  Thralls,  26  Kan.  780.  T.ut  when  thfi 
return  of  Ex-Justice  Kuhn  was  received,  the  defendant  moved  the 
court  to  quash  the  supplemental  writ  and  return  upon  the  following 
grounds  among  others : — h'irst,  that  the  writ  of  certiorari  cannot  be 
directed  to  an  ex-official,  after  he  has  parted  with  the  record  tliat 
is  sought  to  be  reviewed  ;  second,  that  a  ]:>arol  retin;n  made  l)y  an  ex- 
official  is  not  competent  to  contradict  the  record  Vc\A  b\  him  at__ 
tTil*  time  of  ttfe  transactions.     TRTs  attack  w.is  nnsmcessful   in  the 


§    4  PLEADING,    PRACTICE   AND    PROCEDURE.  665 

district  court,  and  the  defendant  brings  the  questions  to  this  court . 

by  appeaHI"       ,,..-.■-.■, n,     ,:     -    "-- 

The  points  above  specified  were  well  taken,  and  the  motion  should 
have  been  sustained.  To  "sustain  the  position  that  the  wTit  of 
certiorari  may  be  directed  to  an  ex-officer  after  he  has  part- 
ed with  the  record,  respondent  relies  upon  Harris  v.  Whitney, 
6  How.  Pr.  175;  Conover  v.  Devlin,  15  How.  Pr.  470.  The  cases 
do  not. go  far  enough.  There  is  no  allusion  to  the  real  point  here. 
Those  cases  do  hold  that  the  writ  may  run  to  an  ex-officer,  but 
there  is  no  suggestion  that  such  ex-officer  was  not  in  each  of  those 
cases  in  possession  of  the  record  to  be  reviewed.  On  the  contrary, 
in  Conover  v.  Devlin,  the  writ  directed  the  ex-officer  "to  certify 
to  this  court  the  proceedings  had  before  him  in  this  matter,  and 
the  record  thereof,"  thus  clearly  showing,  that  such  ex-officer  had 
the  record  in  his  possession.  And  to  support  the  position  that  the 
writ  was  properly  directed  the  court  quote  the  following  from 
Bac.  Abr.  "Certiorari,  F.":  "If  the  person  who  ought  to  certify 
a  record,  as  a  justice  of  the  peace  who  hath  taken  a  recognizance, 
or  a  judge  at  nisi  priiis  who  hath  taken  a  verdict,  or  a  coroner 
who  hath  taken  an  inquest,  die  with  the  record  in  his  custody,  the 
certiorari  may  go  to  his  executor."  Certainly  that  authority  would 
never  be  cited  to  show^  that  the  writ  could  rtmto  one  not  in  pos- 
session of  the  record.  Neither  can  it  be  said  from  wdiat  appears  in 
the  case  that  the  party  to  whom  the  writ  was  directed  was  not  in  pos- 
session of  the  record  in  Harris  v.  Whitney.  There  was  in  that 
case  no  motion  to  quash  the  return,  but  it  was  claimed  that  the 
return  was  a  nullity  on  the  authority  of  Peck  v.  Foote,  4  How.  Pr. 
425,  where  the  court  held  that  the  return  was  an  official  act,  and 
could  onl}^  be  made  by  an  officer.  The  case  of  Harris  v.  Whitney, 
overrules  the  case  in  4  How.  Pr.  and  holds  that  the  return  may 
be  made  by  an  ex-officer,- — a  holding  that  would  be  generally  fol- 
lowed to  day  even  as  to  the  common  law  writ,  if  such  ex-officer  still 
retained  the  record  to  be  reviewed.  It  is  true,  however,  that  the 
return  made  by  the  ex-officer  in  Harris  v.  Whitney,  was  of  matter 
not  of  record.  So  far  as  any  report  shows,  there  was  no  transcript 
in  the  return ;  certainly  there  was  nothing  in  the  return  to  contra- 
dict the  record  made  below.  But  how  far  short  this  case  falls  of 
being  an  authority  under  our  statute  and  in  this  state  will  become 
clear  when  we  remember  that  the  court  upheld  the  subject  matter 
of  that  return  upon  the  theory — and  expressly  so  state — that  it  is 
competent  for  an  -ex-officer  to  make  his  return  by  affidavit;  and 
that,  if  such  ex-officer  died  before  return  made,  the  case  could  be 
heard  on  the  affidavits  of  by-standers,  and  that  each  party  could 
])repare  such  affidavits  and  serve  on  the  opposite  party ;  thus  clearly 
showing  that  in  the  judgment  of  the  court,  under  the  statute  then 
governing  them,  an  issue  of  fact  might  be  determined  by  the  superior 


666  IN   RE   EVINGSON.  §    4 

court  on  certiorari.  The  authorities  hereinafter  cited  will  show 
that  such  a  proceeding  is  unknown  under  the  common  law  writ. 
Our  statute  seems  conclusive  upon  the  point  that  the  writ  cajQJlPt 
run  to  an  ex-officer  who  has  parted  with  the  record.  Section  5509, 
Comp.  Laws,  reads:  "The  writ  may  be  drfecfed'To  an  inferior 
court,  tribunal,  board,  or  officer,  or  to  any  other  person  having 
the  custody  of  the  records  or  proceedings  to  be  certified."  It  is 
only  when  such  "other  person"  has  the  custody  of  the  record  or 
proceedings  that  the  writ  can  be  directed  to  him.  Again,  section 
5510  reads:  "The  writ  of  certiorari  shall  command  the  party  to 
whom  it  is  directed  to  certify  fully  to  the  court  issuing  the  writ, 
at  a  specified  time  and  place,  and  annex  to  the  writ  a  transcript 
of  the  record  and  proceedings,  describing  or  referring  to  them 
with  convenient  certainty,  that  the  same  may  be  reviewed  by  the 
court;  and  requiring  the  party  in  the  meantime  to  desist  from 
further  proceedings  in  the  matter  to  be  reviewed."  What  does 
the  statute  mean  by  a  transcript?  Webster  defines  it  "That  which 
has  been  transcribed ;  a  writing  or  composition  consisting  of  the 
same  words  as  the  original ;  a  written  copy."  There  can  be  no 
transcript  of  that  which  never  had  a  prior  existence.  How.  under 
that  statute  can  a  matter  resting  purel\'_  in  the  niciiior\-  dl  an  ex- 
'jitsfice,  "and  by  hmi  reduced  to  writing  for  the  tlrst  time  after 
the  writ  is  served'upoh  him,  have  any  standing  in  court  as  a  leturn 
"tp"  a  writ  of  certiorari?  But  more,  the  \er\-  definition  and  office 
of  the  common  law  writ  preclude  its  running  to  any  one  who  has 
not  possession  of  the  record  to  be  reviewed.  In  Bac.  Abr.  it  is 
thus  defined :  "A  certiorari  is  an  original  writ  issuing  out  of  chan- 
cery or  the  king's  bench,  directed  to  the  judges  or  officers  of  inferior 
courts,  commanding  them  to  return  the  records  of  a  cause  depend- 
ing before  them,  to  the  end  that  the  party  may  have  the  more  sure 
and  speedy  justice  before  him  or  such  other  justices  as  he  shall  as§ign 
to  hear  the  cause."  The  substance  of  this  definition  has  never  been 
departed  from,  except  where  the  statute  has  broadened  the  scope  of 
the  writ.  In  Donohue  v.  Will  Co.,  100  111.  94.  it  is  said:  "It  (the 
writ  of  certiorari)  requires  no  return  of  the  evidence  or  certificate 
of  facts  outside  the  record,  and  the  trial  must  be  had  upon  the 
record  alone."  Again  from  the  same  court :  "The  common  law 
writ  of  certiorari  simply  brings  before  the  court"  f6fTnJ|5ectioh  the 
record  of  the  inferior  tribunal  or  bodw  and  its  j u dgm cut  affect s 
the  validity  of  the  rec(jrd  alone, — that  is  deterniincs  wlutlur  it  is 
valid  or  invalid."  TTyslop  v.  French,  qq  111.  171.  If  onl)-  the  record 
can  be  felurn'ed  or  considered,  then  only  \\-\v  custodian  of  the  record 
can  make  return.  In  Iron  Co.  v.  Schubcl,  20  Wis.  444,  it  is 
heUl  that  the  party  who  has  the  custody  of  the  record,  and  he  alone, 
can  make  return  to  the  writ.  Wood,  IVIand.  p.  173,  thus  states 
the  nilc:       [f  it  (the  writ  of  certiorari)  is  addressed  to  all  the  per- 


>^    4  I'LEADINC.    I'KACTICE   AND   PROCEDURE.  667 

sons  whose  return  is  necessarily  to  determine  the  regularity  or 
validity  of  the  proceedings  of  the  officer  or  tribunal  sought  to  be 
reviewed,  and  the  fact  that  the  perso-n  is  out  of  office,  is  no  objection 
if  be  has  the  custody  of  the  record."  In  addition  on  this  point 
see,  State  v.  City  of  Fond  du  Lac,  42  Wis.  287;  Crawford  v.  Town- 
ship Board,  22  Mich.  405;  People  v.  Supervisors,  i  Hill.  195;  Peo- 
ple V.  Commissioners,  30  N.  Y.  72;  State  v.  Noonan,  24  Minn.  125  ; 
Wadsworth  v.  Sibley,  38  Wis.  486;  Roberts  v.  Commissioners,  24 
Mich.  182;  People  v.  Plill,  65  Barb.  171  ;  Farmington  River  Water 
Power  Co.  v.  County  Commissioners,  112  Mass.  206;  Com.  v.  Win- 
throp,  10  Mass.  177;  Rutland  v.  Commissio-ners,  20  Pick.  71. 

Upon  the  theory  that  the  supplemental  return  contradicts  the 
record  entries,  and  to  show  the  competency  of  such  return  for 
that  purpose,  the  case  of  Blair  v.  Hamilton,  32  Cal.  50,  is  relied 
upon  by  respondent.  That  case  is  based  upon  Whitney  v.  Board, 
14  Cal.  479,  and  Lowe  v.  Alexander,  15  Cal.  300.  No  other  cases  are 
cited.  The  California  statute  is  identical  with  our  own,  so  far  as 
the  scope  of  the  writ  is  concerned,  though  their  practice  act  gives 
a  wider  range  of  investigation  under  the  writ  than  we  have ;  but 
that  is  immaterial.  But  these  cases  are  hardly  authority  for  the 
position.  In  Whitney  v.  Board  and  Blair  v.  Hamilton,  it  was  held 
that  the  superior  court  had  the  right  to  have  before  it  the  evidence 
on  which  the  inferior  court  based  the  conclusion  that  it  had  juris- 
diction, and  that,  where  this  evidence  did  not  establish  jurisdiction, 
as  a  matter  of  law,  the  action  of  the  inferior  tribunal  could  be 
set  aside.  No  effort  was  made  in  either  of  those  cases  to  contra- 
dict any  statement  of  fact  contained  in  the  record  by  matter  resting 
in  parol.  In  Lowe  v.  Alexander,  there  was  no  question  on  certiorari 
before  the  court.  An  incidental  reference  was  made  to  the  holding 
in  the  Whitney  case.  The  learned  judge  who  wrote  the  opinion  in 
the  Whitney  case  used  this  language  at  page  500 :  "The  provisions 
of  our  statute  are  merely  in  affirmance  of  the  common  law.  The 
nature  and  effect  of  the  writ  remains  unchanged.  Its  functions  are 
neither  enlarged  or  diminished,  and  the  rules  and  principles  which 
govern  its  operation  are  still  the  same."  Our  statute  being  identical 
with  that  of  California,  of  course  all  the  decisions  under  the  com- 
mon law  writ,  should  have  proper  weight  in  this  state.  Many  of 
the  cases  already  cited  announce  in  positive  terms  that  the  reviewing 
court  can  consider  only  the  record  made  by  the  inferior  tribunal, 
which  is  simply  declaring  in  another  form  that  the  record  cannot  be 
contradicted.  This  is  especially  true  of  the  cases  cited  from  Illi- 
nois and  Massachusetts.  The  point  is  emphasized  that  the  record 
cannot  he  ci'iitradicfcd,  but  the  case  must  he  decided  updW'an  Tii- 
ffection  of  the  record.  In  State  vrf^^emenT'lST  Wis.  494,  ^rTr"Vl^. 
^o,  11  IS  said:  ^^I^on  a  writ  of  certiorari  nothing  can  be  intjuired 
into  except  what  appears  of  record  in  the  inferior  court  "or  bocTi^ 


668  IN   RE  EVIXGSON.  §    4 

and  upon  the  return  no  parol  testimony  is  allowed  to  establish  any 
issue  made  by  the  return  to  the  allegations  contained. in  the  petition 
for  the  writ."  Weaver  v.  Lamman,  (Mich.)  28  N.  W.  905,  was 
certiorari  to  a  justice  of  the  peace.  He  made  return  of  a  transcript 
of  the  record,  and  also  of  certain  matters  not  of  record,  and  these 
matters  contradicted  the  record.  Said  the  court:  "The  judgment 
as  it  appears  entered  in  the  docket  must  prevail.  The  record  of  his 
judgment  in  his  docket  cannot  be  contradicted  by  his  return 
to  the  writ."  That  case  cannot  be  distinguished  in  principle  from 
this  case,  except  that  the  return  of  the  extraneous  matter  was  an  offi- 
cial act  of  the  justice  before  his  term  expired.  Miller  v.  McCullough,. 
21  Ark.  426,  was  an  attack  by  certiorari  on  a  justice  court  judg- 
ment. The  petition  for  the  writ  alleged  that  the  defendant  was 
not  served  with  process  in  the  proper  township.  The  transcript 
sent  up  by  the  justice  in  obedience  to  the  writ  showed  service  in  the 
proper  township,  but  the  defendant  in  the  certiorari  proceeding  ad- 
mitted in  open  court  tliat  service  was  not  made  in  the  township 
stated  in  the  return.  Held,  that  on  certiorari,  the  record  ivas  con- 
clusive, even  as  against  such  admissions.  See  also,  Prall  v.  Wal- 
dron,  2  N.  J.  L.  135 ;  Inhabitants,  etc.  v.  Commissioners,  5  Allen 
13  ;  Cassidy  v.  Millerick,  52  Wis.  379,  9  N.  W.  165.  It  is  seldom 
that  a  case  can  be  cited  so  entirely  in  point  to  the  mattet  under 
discussion  as  the  last  case  from  Wisconsin,  That  case  was  certiorari 
to  a  justice  of  the  peace.  There  had  been  an  adjournment  in  the 
case,  and  it  was  claimed  that  the  justice  had  failed  prior  to  such 
adjournment,  or  while  the  parties  were  present,  to  enter  in  his 
docket  any  j^lace  to  which  said  cause  was  adjourned,  but  that  at 
some- subsequent  time  he  had  added  to  the  docket  entry  the  following 
words — "At  my  office  in  the  town  of  Poysippi.  S.  R.  Halleck,  Jus- 
tice of  the  Peace."  It  was  also  claimed  that  on  the  adjourned  day 
the  case  was  not  called  at  the  office  of  the  justice  but  at  a  town 
hall  some  miles  distant.  The  justice  was  required  to  make  a  return 
as  to  these  allegations  and  his  return  showed  the  allegations  to  be 
true ;  but  the  record  certified  up  in  obedience  to  the  writ  showed 
the  quoted  words  regularly  entered,  in  connection  with  the  time  of 
ndjournm'ent.  The  court,  after  a  review  of  the  authorities,  say: 
"These  decisions  clearly  indicate  that,  in  reviewing  a  judgment 
of  a  justice  court  upon  a  common  law  writ  of  certiorari,  the  record 
imports  verity,  notwithstanding  the  statements  of  the  justice  to  the 
contrary,  even  u]K)n  matters  of  jurisdiction.  The  cases  also  disjwse 
f)^  the  fjuestion  as  to  the  place  of  calling  the  suit  at  the  time  to 
which  it  was  adjourned.  Upon  such  a  writ  it  must  Ixi  conclusively 
presumed  that  it  was  called  at  his  office.  To  allow  the  return 
to  have  any  effect  as  against  the  record  and  the  presumptions  aris- 
ing from  it,  would  be  to  authorize  issues  of  fact  as  to  what  did  or 
did  lui-t  r>ccur."     'I'o  our  minds  the  conclusion  thus  reached  is  un- 


§  4  PLEADING,  PRACTICE  AND  PROCEDURE.  669 

avoidable  on  principle.  To  pemiit  the  record  to  be  impeached  by 
the  recollections  of  the  justices  is,  in  effect,  contradicting  the  return 
by  parol  evidence ;  and  there  is  such  an  avalanche  of  authority 
against  that  proceeding  that  no  one  would  claim  that  it  could  be  done. 
If  the  supplemental  return  was  properly  received  in  this  case,  then  we 
are  reduced  to  this  position:  When  Justice  Dance  certified  the 
record  in  obedience  to  the  writ,  had  the  petitioner  sought  to  bring 
in  Ex-Justice  Kuhn,  and  show  by  his  affidavit  or  oral  testimony 
in  open  court  that  the  statements  in  the  record  were  untrue  such  a 
course  would  not  have  been  tolerated  for  a  moment.  But  Mr. 
Kuhn,  a  private  citizen,  is  allowed  to  make  an  unsworn  statement 
out  of  court,  dignify  it  with  the  name  of  a  return,  and  by  the  magic 
of  that  name  the  statement  is  powerful  enough,  to  scatter  a  record 
which  the  same  matter,  coming  from  the  same  party  under  the 
solemnity  of  an  oath,  would  be  powerless  to  touch.  Further,  the 
statute  makes  the  transcript  prima  facie  evidence  of  all  the  facts 
therein  stated.  The  supplemental  return  contradicts  the  trans- 
cript. The  transcript  is  entitled  to  as  much  weight  as  the  unsworn 
statement  of  a  private  citizen.  Suppose  the  truth  of  that  statement 
be  questioned,  how  is  the  court  to  reach  a  decision?  No  evidence 
can  be  introduced  to  fortify  or  defeat  either  the  transcript  or  the 
statement.  By  what  instrumentality  is, the  court  to  solve  the  dilem- 
ma? By  the  allowance  of  the  supplemental  return  an  issue  of  fact 
would  be  formed  in  a  proceeding  where  the  trial  of  an  issue  of  fact 
is  positively  prohibited  by  law.  It  is  true  that  in  nearly  all  the 
states  there  now  exists  some  form  of  statutory  writ  of  certiorari 
broader  in  its  scope  and  more  flexible  in  its  operation  than  the 
•common  law  writ  to  which  we  are  confined. 

It  is  urged  upon  us,  however,  that  the  return  to  the  supplemental 
writ  does  not  in  fact,  contradict  the  record  of  the  justice  as  the 
statute  requires  it  to  be  kept ;  that  the  statute  nowhere  requires 
the  justice  to  enter  the  time  or  place  of  entering  judgment;  and 
that  the  words,  "Dated  at  Kindred,  Cass  Cotmty,  N.  D.,  January 
3,  1890,"  not  being  required  by  statute,  form  no  part  of  the  record 
proper,  and  hence  can  be  contradicted  by  parol.  It  is  true  that 
entry  is  not  essentially  enjoined.  We  may  erase  it  and  still  the 
difficulty  is  not  renioved,  because  the  facts  stated  in  that  entry 
are  necessarily  presumed  from  what  the  law  does  require  to  be 
made  matter  of  record.  In  every  case  in  justice  court,  when  all 
the  entries  that  the  law  requires  to  be  made  are  made,  (and  there 
is  no  claim  that  the  transcript  as  returned  in  this  case  does  not  show 
all  the  entries  required  by  statute),  the  record  must  necessarily  show 
a  valid  judgment ;  otherwise  a  judgment  of  a  justice  of  the  peace 
could  not  be  proven  by  the  docket  or  a  transcript  thereof.  But, 
as  we  have  already  seen,  the  judgment  in  order  to  be  valid  must  be 
entered  at  once  on  the  return  of  the  verdict,  and  the  justice  must 


670  I.N    Kli   liVlNGSON.  ,  §    4 

make  llic  entry  while  in  the  proper  township  and  county.  Hence, 
in  this  case,  with  the  quoted  entry  erased,  we  must  presume  from 
the  record  that  the  judgment  was  entered  on  January  3,  1890,  in 
Norman  township,  Cass  County,  N.  D. ;  otherwise  we  would  liave 
a  judgment  containing-  every  entry  that  the  statute  requires,  yet 
void  on  its  face.  To  allow  the  necessary  presumptions  arising  from 
a  record  to  be  contradicted  by  parol  would  be  just  as  fatal  to  the 
record  in  every  case  as  to  allow  the  express  words  of  the  record 
to  be  contradicted.  In  Cassidy  v.  Millerick,  supra,  the  justice 
stated  that  he  called  the  case  at  the  town  hall,  three  miles  from  his 
office,  but  the  court  said:  "Upon  sucli  a  writ  {certiorari)  it  must 
be  conclusively  presumed  that  it  was  called  at  his  office.  To  allow 
the  return  to  have  any  eflfect  as  against  the  record  and  the  pre- 
sumptions arising  from  it  would  be  to  authorize  issues  of  fact 
as  to  what  did  or  did  not  occur."  The  evil  that  would  result  in  cases 
of  this  character  from  holding  that  the  record  imports  verity  is 
far  less  than  the  evil  that  w^ould  result  from  permitting  court  records 
to  be  frittered  away  by  the  memory  of  man.  Nor  clo  we  think  the 
petitioner  was  without  remedy  in  this  case ;  but  that  question,  while 
important,  is  not  controlling.  It  often  happens  that  a  party  is  with- 
out remedy  except  against  the  oftending  official.  It  was  we-11 
said  in  Cassidy  v.  Millerick,  "The  question  is  not  whether  the  de- 
fendant had  a  remedy,  but  was  he  entitled  to  the  one  he  sought  in 
this  writ?.  For  the  reasons  above  stated  the  district  court  i-  directed 
to  reverse  its  judgment,  and  quash  the  supplemental  wri^  and , tjie~ 
return  theretQ.    All  concur. 

Corliss,  C.  J. — I  concur  on  the  ground  that  the  record  of  the 
cause  showed  that  the  judgment  was  entered  at  the  proper  time  imd 
place  and  that  this  record  cannot  be  overthrown  by  the  parol  return. 
There  can  be  no  stronger  presumption  that  an  officer  will  make 
a  false  record  than  that  he  will  make  a  false  retiu-n.  The  issue 
between  the  record  and  the  return  cannc^t  be  litigated  ;  and,  as  one 
or  the  other  must  ])revail,  it  is  consonant  with  scnnid  principle  to^^ivc 
verity  to  the  record. 

Sec  also  on  vcrit}'  of  record. — Cassiday  v.  Millerick,  52  Wis.  379; 
Scliioder  v.  Crary,  11  Iowa,  555;  Allen  v.  Stone,  5  Barb.  (N.  Y.)  60; 
Kinnk'herR  v.  Peterson,  76  Mich.  107;  Scott  v.  Beatty,  23  N.  J.  L.  256: 
irofFmann  v.  Superior  Ct..  79  Cal.  475;  Pinkney  v.  Ayres,  2X  N.  J.  f-  604; 
Deer  V.  Commissioners,  109  111.  379- 


,y 


A^r 


§    4  I'LE.MtlXC,    PRACTICE   AND    PROCEDURE.  67I 

d.     Affirming  part  of  judgment. 

COMMONWEALTH    v.    WEST    BOSTON    BRIDGE. 

1832.     Supreme  Judicial  Court  of  Massachusetts.     30  Mass. 

195- 

Shaw^  C.  ].,  delivered  the  opinion  of  the  court.  It  seems  that 
among  the  pai>ers  of  the  late  Chief  Justice  Parker  has  been  found, 
since  his  decease,  a  manuscript  opinion  in  this  case,  which  has 
been  printed  in  10  Pick.  272.  lt_j,x^&  founded-upQrLjJi£_pgtition 
for  a  certiorari,  and  it  determines  that  the  commissioners  of  high- 
ways are  not  authorized  to  lay  out  a  highway  over  an  existing 
turnpike  xoacf.  But  the  opinion  proceeds  as  follows:  ''Tin-  coni- 
missioners  liaying  acted  upon  this  application  for  this  new  road 
ancl_j,djudged.  it  to  be  for  the  common  convenience  to  a  certain 
extent,  and  made  return  of  their  proceedings,  which  were  recorded, 
were  f'uncfi  officio  in  regard  to  this  new  road  upon  that  applica- 
tion. Their  further  proceedings  without  an  application  are  void, 
as-a  judgment  of  the  court  without  a  writ  would  be."  Now  mv 
Brethren  upm  Hid  moih  tlO  IIOL  fecollect  tKaTTHTT  point  was  so 
decided,  nor  was  the  determination  of  it  necessary,  as  the  pro- 
ceedings of  the  commissioners  were  erroneous  upon  a  dififerent 
ground  than  the  one  upon  which  the  cause  was  in  fact  decided. 
I  refer  to  the  point,  rather  for  the  purpose  of  saying  that  it  is 
still  an  open  question,  than  that  it  has  any  immediate  bearing 
upon  the  present  motion. 

Since  that  opinion  was  given  and  upon  the  return  of  the  writ, 
a  question  has  arisen  and  been  somewhat  discussed,  namely,  what 
judgment  ought  to  be  given  :  whether  the  whole  proceeding  must 
be  quashed,  or  whether  that  part  of  the  doings  of  the  commis- 
sioners, which  lays  out  the  new  road  on  the  turnpike,  can  be 
quashed,  leaving  the  remainder  of  those  proceedings  in  force  and 
valid.  The  rule  upon  this  subject  was  fully  considered  in  the 
case  of  Commonwealth  v.  Blue  Hill  Turnpike,  5  Mass.  R.  420. 
It  appears  to  be  well  settled,  that  upon  the  return  of  a  writ  of 
^vrtfV'fUTi,  the  court  will  riot  enter  a  new  judgment,  where  the 
Trrcrceedings  are  found  erroneous ;  but  if  the  proceedings  are  so 
independent  nf,  and  disconnected  with  each  other,  that  a  part 
may  be  quashed,  and  leave  'the  remainder  an  entire,  beneficial  and 
available  judgment  to  the  purposes  for  which  it  was  intendeci, 
the  court  viay  quash  that  ivHicJi  is  erroneous,  and  affirm  the  re- 
mainder. 

In  applying  this  rule,  the  question  is,  whether  that  part  of  the 
proceedings  of  the  commissioners,  which  laid  out  the  highwav 
on  the  turnpike,  could  be  quasHed,  and  leave  the  remainder  an 
entire  and  beneficial  measure,  and  consistent  with  the  general  in- 


672  COMMONWEALTH    V.    WEST    BOSTON    BRIDGE.  §    4 

tent  and  purpose  of  the  commissioner.  As  the  turnpike  was  already 
a  highway,  which  the  pubHc  had  a  right  to  use,  that  section  of  it, 
over  which  the  highway  was  laid,  so  connects  itself  with  the  other 
parts  laid  out  by  the  commissioners,  that  the  whole  may  be  con- 
sidered as  a  useful  highway.  But  on  the  other  hand,  it  is  manifest 
that  it  was  the  intent  of  the  commissioners  to  make  the  whole  a 
free  road,  and  in  effect  to  discontinue  the  turnpike,  and  the  allow- 
ance of  damage  to  the  lessees  of  the  turnpike  strongly  confirms 
this  presumption.  Had  the  whole  been  done  by  one  judgment. 
given  at  one  time,  it  would  have  been  impossible  for  the  court 
judicially  to  know  that  the  commissioners  would  have  laid  out 
the  two  sections  which  are  not  on  the  turnpike,  had  they  believed 
that  there  was  any  legal  invalidity  in  their  proceeding  in  regard 
to  the  intermediate  section.  The  court  could  not  in  that  case  per- 
ceive that  these  parts  were  so  disconnected  and  independent,  that 
part  could  be  quashed  and  the  remainder  afifirmed,  conformably  to 
the  principle  already  stated. 

But  it  appears  that,  in  the  proceedings  upon  this  subject,  there 
wereTvv^o  distinct  "adjudications,  and  returns  by  the  commissioners, 
L^pon  the  first  they  proceeded  to  adjudicate  upon  the  common  con- 
ventence  and  necessity  of  a  certain  section  of  the  highway  prayed 
for,  and  to  lay  it  out  and  make  return  of  their  doings  to  the  court 
of^essions7  reserving  the  determination  of  the  other  part,  for  future 
consideration.  Afterwards  a  further  adjudication  and  return  were 
made,  in  regard  to  the  other  section.  It  was  in  the  latter  pro- 
ceeding that  the  commissioners  exceeded  their  authorits',  in  laying 
the  highway  upon  the  turnpike.  These  two  proceedings  and  adju- 
dications are  wholly  distinct  and  independent  of  each  other^and 
the  validity  of  the  former  can  in  no  way  be  affected  by  the  irreg- 
ularity in  the  latter.  Had  no  second  adjudication  ever  taken  place, 
the  first  is  complete  and  would  have  remained  so.  The  conse- 
quence therefore  is,  and  this  is  the  judgment  of  the  court,  that  all 
that  part  of  the  judgment  and  proceedings  of  the  commissioners 
'embraced  in  their  second  return  to  the  court  of  sessions,  be  quashed, 
and  held  to  be  void  and  of  no  effect,  and  all  that  j^art  of  their 
proceedings  embraced  in  their  first  return,  be  affirmed. 

See  also  Raker  v.  Superior  Court,  71  Cal.  583;  Shafcr  v.  Hopue.  70  Wis. 
392;  Walker  v.  McDonald,  5  Minn.  455;  Tlotchkiss  v.  Clicvaillier,  12  Tex. 
224;  Kast  V.  Kathern,  3  Denio  (N.  Y.),  344;  Childs  v.  Crawford,  8  Ala. 
731. 


§    4  I'LEADING,  PRACTICE  AND  PROCEDURE.  6/3 

e.     Costs. 

BALDWIX  V.  WHEATOX. 

1834.     Supreme  Court  of   New  York.      12  Wendall  263. 

On  a  motion  to  this  cause  relative  to  costs,  the  chief  justice 
ruled,  that  in  the  prosecution  and  defence  of  a  common  law  certio- 
rari, neither  ])arl\    is  entitled  to  recover  costs  against  the  other. 

In  New  York  now,  and  in  other  states,  it  is  held  that  costs  may  be 
awarded  in  certinrari  in  the  appellate  tribunal.  People  v.  Van  Alstyne,  3 
Keyes  (N.  Y. ),  35;  People  v.  Commissioners,  etc.,  27  How.  Pr.  (N.  Y.) 
158;  Myers  v.  Pownal,  16  Vt.  426;  Stetson  v.  Penobscot  Company,  72  Me. 
17- 


CHAPTER  V. 

PROCEDENDO. 


I.     The  Common  Law   Writ. 

"  '■'<'  *  *  A  writ  of  procedendo  ad  judicium  issues  out  of 
the  court  of  chancery,  where  judges  of  any  subordinate  court  do 
delay  the  parties ;  for  that  they  wdll  not  give  judgment  either  on 
the  one  side  or  the  other,  when  they  ought  so  to  do.  In  this  case 
a  writ  of  procedendo  shall  be  awarded,  commanding  them  in  the 
king's  name  to  proceed  to  judgment ;  hut  zvithout  specifying  any 
particular  judgment,  for  that  (if  erroneous)  may  be  set  aside  in 
the  course  of  appeal;  or  by  writ  of  error  or  false  judgment;  and 
upon  further  neglect  or  refusal,  the  judges  of  the  inferior  court 
may  be  punished  for  their  contempt  by  a  wTit  of  attachment  re- 
turnable to  the  king's  bench  of  common  pleas."  3  Blackstone, 
Com.  109,  no.     See  also  Fitzherbert's  Natura  Brevium,  359. 

But  few  cases  can  be  found  in  the  old  reports  in  which  this 
writ  has  been  issued.  Whether  because  of  a  better  acquaintance 
with  mandamus  or  because  of  the  technical  difficulties  involved  in 
suing  out  a  procedendo,  the  latter  writ,  in  the  sense  in  which 
Fitzherbert  and  Blackstone  define  it,  seems  to  have  fallen  early  into 
disuse  and  mandamus  to  have  been  employed  to  meet  the  ends 
for  which  it  was  originally  designed.  In  modem  practice  the  Writ 
of  procedendo,  in  the  a]>ove  defined  sense,  is  seldom,  if  ever  used. 
Certainly  the  writer  has  been  unable  to  find  any  case  in  our  Amer- 
ican reports  in  which  the  writ  of  procedendo  has  been  used  to 
compel  a  court  to  proceed  to  judgment. 


'I'llI-:  'I'OWX  OF  WonilSTOCK  V.   CAFFrr. 

1856.      Si;i-REMF.  Court  of   \'i:!nio\T.      28   \'t.    587. 

(Certiorart  to  tlu'  cDuuly  court  to  correct  the  judgment  of  said 
crnirt  setting  aside  the  action  of  selectmen  of  the  county  in  laying 
out  a  certain  highway  and  declaring  that  it,  the  said  county  court, 
had  no  authority  in  law  to  establish  a  highway,  and  refusing  ta 
entertain   further  proceedings  in  said  cause.) 

674 


§   1  proci:dexdo.  675 

(So  much  of  the  opinion  as  relates  to  the  authority  of  the 
county  court  to  estabhsh  public  highways,   is  omitted.) 

The  opinion  of  the  court  was  delivered  by  Redfield,  Ch.  J. 

*  *  *  It  seems  to  us  that  the  more  appropriate  remedy  in  cases 
like  the  present,  w^here  the  inferior  court  disposes  of  the  matters 
upon  some  incidental  questions,  and  declines  to  hear  the  case 
upon  its  merits,  is  a  writ  of  mandamus,  in  the  nature  of  a  pro- 
cedendo, as  was  held  by  the  Supreme  Court  of  the  United  States 
in  Livingston  v.  Dorgenois,  7  Cranch  577,  2  C.  D.  677;  and  as 
was  virtually  done  in  Ex  parte  Crane,  5  Pet.  190,  where  a  man- 
damus was  issued  to  a  judge  of  the  circuit  court  in  the  district  of 
New  York,  requiring  him  to  sign  a  bill  of  exceptions.  The  writ 
of  mandamus  is  the  supplementary  remedy,  so  to  speak,  where 
the  party  has  a  clear  right,  and  no  other  appropriate  redress,  to 
])revent  a  failure  of  justice;  3  Black.  Com.  no,  12  Pet.  Abr.  309 
(438).  It  is  the  absence  of  a  specific  legal  remedy  Avhich  gives 
the  court  jurisdiction ;  2  Sel.  N.  P.  Title  "Mandamus."  But  the 
party  must  have  a  specific  legal  right ;  Rex  v.  Barker,  3  Burrow 
1265;  Ellenborough,  Ch.  J.,  8  East  219.  The  remedy  extends 
to  the  control  of  all  inferior  tribunals,  corporations,  public  ofificers. 
and  even  private  persons  in  some  cases ;  but  more  generally  the 
English  Court  of  King's  Bench  declines  to  interfere,  by  mandamus, 
to  require  a  specific  performance  of  a  contract,  where  no  public 
right  is  concerned.  Lord  Mansfield  in  King  v.  Barker,  3  Bur. 
1265-1270;  Angell  &  Ames  on  Corporations.  761;  The  King  v. 
The  Adayor  oi  Colchester,  2  Term.  260 ;  The  King  v.  The  Corpora- 
tion of  13edford  Level,  6  Plast  356.  There  is  almost  no  end  to  the 
cases  on  this  subject.  They  will  be  found  digested,  under  the 
title'  "Mandamus"  in  Petersdorfif's  Ab.  and  Bacon's  Ab. 

The  procedendo  seems  to  be  only  a  particular  form  of  the  nian- 
damiis,  and  often  to  accompany  the  certiorari,  and  indeed  alwavs 
perha]>s,  where  the  case  is  remanded  for  further  proceedings  in 
the  inferior  court.  So  that  in  the  present  case,  if  the  certiorari 
had  issued,  and  the  record  had  been  actually  brought  into  this 
court,  all  we  could  have  done,  w^ould  have  been  to  reverse  the 
judgment  of  the  county  court,  and  either  hear  it  in  this  court, 
upon  the  merits,  or  remit  it  to  the  county  court,  with  a  writ  of 
mandamus,  in  the  nature  of  a  procedendo  to  hear  the'  case  and 
determine  it  upon  its  merits;  14  Petersd.  Ab.  32,  (43)  ;  Black.  Com. 
109. 

The  procedendo  is  always  accorded  where  the  case  is  more 
proper  to  be  tried  in  the  inferior  court ;  Pope  v.  \"aux  &  Wife,  2 
W.  Black.  1060;  But  the  mandamus  and  procedendo  is  not  to 
require  the  inferior  court  to  render  any  particular  judgment,  but 
to  proceed  and  give  judgment,  notwithstanding  some  alleged  ex- 


676  MARTIN  V.  H.  L.  LAZARUS,  JUDGE.  §  I 

cuse.  Ex  parte  Hoyt,  13  Pet.  279.  Nor  will  a  mandamus  be  ac- 
corded where  the  party  has  an  appeal  to  the  same  court  where 
the  mandamus  is  asked.  Ex  parte  Whitney,  13  Pet.  404.  And 
in  this  case  we  prefer  this  mode  of  redress  to  that  of  certiorari, 
only  because  we  can,  in  this  mode,  accomplish  all  that  is  desired, 
without  bringing  the  case  here  before  it  is  finished  in  the  inferior 
court. 

The  case  of  Walker  v.  The  London  and  Blackwall  Railroad  Com- 
pany, 3  Q.  B.  744,  is  a  case  almost  precisely  in  point.  The  sheriff 
was  required  to  hold  inquisitions  upon  petitions  for  land  damages 
against  railways.  Upon  the  trial  of  the  plaintiff's  case,  the  sheriff 
directed  the  jury  to  find  a  verdict  for  the  defendants,  on  the 
ground  that  the  plaintiff  was  not  entitled  to  compel  the  company 
to  purchase  his  property.  The  Queen's  Bench,  on  an  application 
for  a  peremptory  mandamus,  decided  that  the  writ  must  issue, 
requiring  the  sheriff  to  proceed  and  assess  the  damages  disre- 
garding his  former  judgment  and  the  verdict  of  the  jury.  The 
form  of  the  writ  there  issued  was  a  mandamus  in  the  nature  of  a 
procedendo  as  in  the  present  case.  But  very  likely  the  same  thing 
might  be  done  only  by  mandamus,  in  regard  to  those  tribunals 
to  which  the  superior  court  had  power  to  issue  the  writ  of  certio- 
rari. For  if  that  were  taken  away  by  statute,  it  would  be  regarded 
as  an  evasion  to  accomplish  the  same  thing,  more  directly,  by  a 
mandamus ;  Rex  v.  Justices  of  Yorkshire,  i  Adol.  &  El,  563 ;  see 
In  re  Ednumson,  24  Eng.  Law  &  Eq.  Rep.  169. 

The  petitioners  having  amended  the  prayer  of  the  petition,  by 
adding  thereio  "or  mandamus  or  other  appropriate  remedy  in  the 
discretion  of  the  court,"  the  order  is  made. 

That  a  writ  of  mandamus  in  the  nature  of  a  procedendo  do  issue 
to  the  county  court,  in  the  county  of  Windsor,  requiring  them  to 
proceed  and  hear,  try  and  determine  the  case  there  i>ending  be- 
tween the  parties  aforesaid  as  described  in  the  petition  to  this 
court,  upon  its  merits,  and  render  judgment  thereon  wholly  dis- 
regarding their  former  judgment  given  in  the  case  and  complained 
of  in  the  petition  here  pending,  and  that  no  costs,  in  this  court 
be  taxed  in  favor  oi  cither  party. 


.^TATI':  F.x   REL.   MARTIN'    v.   H.   L.   LAZARUS,  JUDGE. 
1885.     vSui'RKME  Court  of  Louisiana.   37   La.   Ann.   610. 

Tme  opinion  of  the  court  was  delivered  by 

Bermuoez,   C.   J. —  Ihis    is   an   application    for   a    mandamus   to 
coccrse  the  decision  of  a  cause  on  its  merits. 


§     I  rROCEDENLO.  ^JJ 

The  complaint  is  that,  though  the '  case  was  tried,  argued  and 
submitted  two  years  ago  and  although  the  district  judge  has  been 
often  requested  and  has  frequently  promised  to  pass  upon  the  same, 
no  decision  has,  as  yet,  been  rendered,  and  that  the  delay  thus 
occasioned  amounts  to  a  refusal  to  determine  the  controversy,  and 
that  this  is  a  denial  of  justice. 

The  relator  avers  that  although  the  facts  involved  may  be 
numerous  and  complicated,  yet  the  questions  of  law  presented  are 
few  and  simple;  that  the  parties  have,  with  a  view  to  assist  the 
judge  in  his  examination  and  determination  of  the  matters  pre- 
sented, in  the  year  18S3  and  in  the  beginning  of  1884,  submitted 
elaborate  printed  briefs  containing  references  to  the  most  important 
portions  of  the  testimony. 

He  urges  that  he  is  seventy-seven  years  of  age  and  fears  that 
death  will  overtake  him,  before  the  cause  is  decided,  if  the  future 
may  be  judged  by  the  past ;  that  his  death  may  seriously  affect 
the  vigorous  prosecution  of  the  cause  and  that  h-e  believes  that  it 
is  important  to  his  interests  that  the  same  be  promptly  decided. 

The  district  judge,  in  an  elaborate  return,  represents  the  case  as 
one  of  great  complication  and  difificulty,  requiring  unusual  con- 
sideration for  determination.  He  says  that  the  suit  was  brought 
in  1874,  that  it  passed  from  one  court  to  another,  by  operation 
of  law ;  that  the  accounts  involved  were  referred  for  considera- 
tion and  report  to  experts  and  to  an  umpire;  that  .the  parties 
litigant  disagreed ;  that  the  record  is  immense  and  the  whole  re- 
sponsibility of  determining  the  issues  presented  rests  on  him ;  that 
the  cause  was  not  actually  submitted  until  November,  1884;  since 
when  he  has  diligently  applied  himself  to  the  examination  and 
study  of  the  accounts,  testimony  and  reports  in  the  case ;  that 
there  are  grave  and  important  legal  propositions  involved 
which  counsel  for  the  plaintiff  did  not  discuss  and  in  which  they 
have,  in  no  manner,  aided  the  court  by  reference  to  authorities ; 
that  he  has  used  every  effort  and  made  every  endeavor  to  reach 
a  prompt  decision  in  the  cause ;  that  he  was  in  the  active  prep- 
aration of  his  o])inion  in  the  case ;  and,  now  without  stating  within 
what  time  specifically  the  cause  is  to  be  decided,  respondent  in- 
forms this  court  that  a  decision  will  be  rendered  before  the  close 
of  the  present  term,  which  means  July  3d,  next. 

The  district  judge  charges  that  the  statements  in  the  relator's 
petition  that  the  delay  operates  as  a  denial  of  justice  is  malicious. 
false  and  imtrue  and  that  whatever  delay  is  incident  to  a  prompt 
decision  of  this  cause,  results   from  the  plaintift''s  action. 

The  case  is  strongly  presented  by  both  the  relator  and  the  re- 
spondent :  but  there  can  be  no  doubt  that,  under  the  law  and  under 
the  showing  of  the  district  judge,  the  complaint  is  not  without 
just  foundation. 


678  MARTIN  V.  H.  L.  LAZARUS,  JUDGE.  I 

The  right  of  this  court,  in  a  proper  case  to  issue  this  writ,  can- 
not be  questioned. 

The  code  of  practice  is  explicit  to  the  effect,  that,  the  writ 
issues  when  the  judges  of  inferior  courts  are  guilty  of  a  denial 
of  justice,  "or  of  unreasonable  delay  in  pronouncing  judgment 
on  causes  before  them."     C.  P.  838. 

Up  to  recently  it  was  not  so  easy  to  determine  what  the  code 
meant  bv  "unreasonable  delay,"  but  the  last  legislature  appears 
to  have  construed  it  to  signify  thirty  days.     Y.  Act  72,  p.  94  of 

1884. 

Whatever  be  the  standpoint  from  which,  either  article  C.  P. 
838,  or  the  act  of  1884  or  both,  be  considered,  it  is  clear  that 
the  district  judge  has  had  more  than  ample  time  to  investigate 
the  case  and  to  render  a  conscientious  judgment  in  it. 

From  the  return  made,  it  appears  that  the  cause  was  submitted 
in  November,  1884,  if  not  before,  that  is,  upwards  of  five  months, 
or  a  period  exceeding  four  times  the  delay  within  which  the  act 
of  1884  designs  cases  to  be  determined. 

It  is  apparent  that,  had  this  cause  been  tried  and  argued  before 
and  submitted  to  a  special  jury  two  years  ago,  when  the  oral  ar- 
gument in  it  was  closed,  it  would,  long  ago.  have  been  disposed  of. 

The  relator  has  presented  a  clear  bona  Ude  case  in  point  of  fact, 
in  w'hich  it  appears  that  the  respondent  has  failed  to  comply  with 
a  duty  unequivocally  imposed  upon  him  by  law. 

I'nder  the  circumstances  we  are  allowed  no  discretion,  and  must 
allow  the  relief  sought. 

It  is,  therefore,  ordered  and  decreed,  that  the  alternative  man- 
<lamus  issued  be  made  peremptory  and  that  the  respondent  be 
commanded  to  decide  the  cause,  described  in  the  petition  without 
further  delay. 

(Concurring  f)])inion  of  PoriiF,  J.,  and  dissenting  oi>inion  of 
Fenner,  J.,  r)mitted.) 

Maxnixg.  J. — r)ur  mandate  to  the  respondent  judge  to  decide 
without  further  dcla\,  the  cause  wherein  the  relator  is  plaintiff 
and  R.  P.  Aldigc  and  Jules  Alidgc  are  defendants  having  been 
sent  down  and  not  having  been  obeyed,  the  relator  has  moved  that 
the  judge  show  cause  why  an  order  of  arrest  and  imprisonment 
should  not  issue  thereon. 

The  judge  answering  disclaims  that  his  non-decision  of  the  cause 
is  due  to  contempt  of  the  authority  of  the  court  or  to  any  desire 
to  di.sobey  or  evade  its  mandate,  and  avers  that  he  construed  it 
to  mean  that  h?  should  examine  the  cause  with  all  possible  dili- 
gence and  decide  it  according  to  the  law  and  the  evidence.  He 
states  that  he  has  lx;en  "faithfully  engaged  in  the  preparation  of 
his  opinion  every  spare  moment  of  his  time  for  a  long  period  prior 
to  the  ap]>lication  for  a  mandamus- and  that  as  soon  as  he  can  finish 


5$    I  PROCEDENDO.  679 

his  opinion,  which  will  probably  be  in  the  course  of  the  following 
week,  he  will  render  judgment  as  required  in  the  mandate."  If 
however  he  has  misconstrued  our  mandate  he  begs  that  we  w'ill 
inform  him  what  judgment  to  render. 

It  is  beyond  our  province  to  instruct  or  our  power  to  command 
what  judgment  shall  be  rendered  in  the  suit  at  the  present  stage. 
We  can  only  order  him  to  proceed  to  judgment.  We  have  done 
that,  and  the  code  of  practice  directs  "if  he  does  not  obey,  an  order 
of  arrest  shall  issue  and  he  shall  be  imprisoned  until  he  shall 
render  obedience."     Art.  843. 

The  terms  of  the  article  imply  that  all  the  reasons  of  the  judge 
for  his  non-decision  of  the  cause  shall  have  been  heard  and  passed 
on  when  the  mandamus  was  made  peremptory,  for  the  language 
is  im.perative  "if  his  answer  is  considered  insufficient,  then  a  per- 
emptory mandate  shall  issue"  and  the  penalty  of  his  disobedience 
shall  be  arrest  and  imprisonment. 

Therefore  the  reasons  now  given  for  disobedience  are  merely 
those  given  or  which  should  have  been  given  why  our  peremptory 
m^andate  should  not  issue.  The  matter  is  closed  and  our  decree  en- 
tered thereon  was  unambiguous  and  not  difficult  to  be  construed. 

The  application  for  the  mandamus  w^as  made  on  the  fifth  of 
the  present  month.  It  is  now  the  twenty-ninth  and  this  term  of 
the  court  must  end  tomorrow.  We  had  hoped  that  as  the  re- 
spondent had  been  preparing  his  opinion  long  before  the  appli- 
cation for  the  writ  was  made,  we  should  have  had  the  satisfaction 
of  knowing  that  its  completion  and  the  rendition  of  a  judgment 
in  the  cause  had  relieved  us  of  performing  a  disagreeable  dutv. 

The  law  has  given  the  relator  the  remedy  now  invoked  by  him 
and  it  has  very  distinctly  and  directly  imposed  on  us  the  obliga- 
tion of  applying  it.  We  have  nothing  to  do  with  its  reasonableness 
or  unreasonableness. 

Since  however  the  respondent  informs  us  that  he  will  prob- 
ably be  ready  to  decide  the  cause  within  the  next  week,  we  shall 
suspend  the  execution  of  the  order  for  imprisonment  for  one  week 
from  this  day. 

It  is  therefore  ordered  and  decreed  that  the  respondent  Henry 
L.  Lazarus  be  arrested  and  imprisoned  in  the  jail  of  this  parish 
imtil  he  has  obeyed  the  mandate  of  this  court  heretofore  issued 
to  him  in  the  proceedings  for  a  mandamus  in  this  cause.  And  it 
is  further  ordered  that  the  execution  of  this  decree  is  suspended 
for  one  week  from  this  day,  that  is  to  say  this  suspension  expires 
on  Friday,  the  fifth  day  of  Jtme  next. 

See  also  Life  &  Fire  Insurance  Co.  v.  Adams,  9  Pet.  (U.  S.)  572;  State 
V.  Young,  31  Fla.  594;  Trapnall.  Ex  parte,  6  Ark.  9:  Ex  parte  State  Bar 
Asso.,  92  Ala.  113;  People  v.  Sexton.  24  Cal.  84;  State  v.  St.  Louis  School 
Board,  131  Mo.  505;  State  v.  Smith,  69  Ohio  St.  196;  People  v.  Foster, 
40  Misc.    (N.   Y.)    19. 


680  MARTIN  V.  H.  L.  LAZARUS,  JUDGE.  §  I 

2.  The  common  use  of  the  term  "procedendo"  in  modern  prac- 
tice. 

In  modern  practice  the  tenn  "procedendo"  is  commonly  used  to 
designate  the  mandate  of  the  appyellate  tribunal  when  it  remands  a 
case  before  it  to  the  court  below,  either  with  or  without  instructions 
to  proceed  in  conformity  with  the  opinion  or  judgment  of  said 
appellate  court.  In  this  sense  the  term  is  used  synonymously  with 
the  terms  "remittiir"  and  "mandate." 

The  necessity  for  some  such  writ  or  order  arises  from  the  fact 
that  without  some  form  of  authority  the  court  below  can  enter- 
tain no  proceedings  in  a  cause  which  has  been  appealed  or  is  be- 
fore the  higher  tribunal  by  writ  of  error,  certiorari,  prohibition  or 
some  other  writ. 

In  some  states  the  order  of  an  appellate  court  dismissing  an 
appeal  or  quashing  some  other  writ  by  which  the  cause  below  has 
been  brought  before  it,  is  held  to  be  sufficient  authority  for  the 
trial  court  to  proceed  in  the  cause  and  no  official  procedendo  or 
remittiir  is  necessary. 


CHAPTER  VI. 

HABEAS    CORPUS. 

Section  1. — Definition  and  General  Principles  Governing  the  Writ. 

I.     Definition,  origin  and  history  of  the  writ. 

"No  freeman  shall  be  taken,  or  imprisoned,  or  be  disseized  of 
his  freehold,  or  liberties,  or  free  customs,  or  be  outlawed,  or  exiled, 
or  any  other  wise  destroyed ;  nor  will  we  pass  upon  him  nor 
condemn  him,  but  by  lawful  judgment  of  his  peers,  or  by  the  law 
of  the  land.  We  will  sell  to  no  man,  we  will  not  deny  or  defer 
to  any  man  either  justice  or  right."  Magna  Carta,  9  Hen.  HI 
(1225)  Cap.  29;  I  Eng.  Stat,  at  Large,  7. 

J'Tlie  writ  of  habeas  corpus,  the  most  celebrated  writ  in  the 
Eng-lish  law.  "TJf  tins  there  are  various  kinds  made  use  of  by 
tTTe  courts  at  Westminster,  for  removing  prisoners  from  one  court 

into  another   for  the  more  easy   administration  of  justice. .Such 

rs"  the  habeas  corpus  adresjondenduni,  when  a  man  hath  a  cause 
of  action  against  one  who  is  confined  by  the  process  of  an  inferior 
cbtlft;  m"  order  to  remove  the  prisoner,  and  charge  him  with  this 
hew  action  in  the_  court  above.  Such  is  that  ad  satisfaciendum 
w1icn  a  prisorier  hath*  had  judgment  against  him  in  an  action,  and 
the  plaintiff  is  desirous  to  bring  him  up  to  some  superior  court 
to  charge  him  with  execution.  Such  also  are  those  ad  prosquendum, 
testificandum,  deliberandum,  etc. ;  which  issue  when  it  is  necessary 
to  remove  a  prisoner,  in  order  to  prosecute  or  bear  testimony  in 
any  court,  or  be  tried  in  the  proper  jurisdiction  wherein  the  fact 
was  committed.  ^ucli_is,Jastly,  the  common  writ  oiad  faciendum 
ct  recipiendum,  \y\'\\ch.  issues  out  bf~any  ~oT"the  courts  at  Wesf- 
minster  Hall,  when  a  person  is  sued  in  some  inferior  jurisdiction, 
and  is  desirous  to  remove  the  action  into  some  superior  court; 
commanding  the  inferior  judges  to  produce  the  body  of  the  de- 
fendant, together  with  the  day  and  cause  of  his  caption  and  de- 
taincrTv/hence  the  writ  is  frequently  denominated  an  habeas  corpus 
Titm^causa)]  to  do  and  receive  whatsoever  the  king's  court  shall 
"consider  in  that  behalf.  This  is  a  writ  grantable  of  common 
right,  without  any  motion  in  court,  and  it  instantly  supersedes  all 
proceedings  in  the  court  below.  But  in  order  to  prevent  the  sur- 
reptitious discharge  of  prisoners,  it  is  ordered  by  statute  i  &  2 
P.  &  M.  c.  13,  that  no  habeas  corpus  shall  issue  to  remove  any 

681 


682  ANCIEXT    WRITS  OF    IIADEAS   CORPUS.  §     I 

prisoner  out  of  any  gaol,  unless  signed  by  some  judge  of  the  court 
out  of  which  it  is  awarded.  And  to  avoid  vexatious  delays  by  re- 
moval of  frivolous  causes,  it  is  enacted  by  statute  21  Jac.  I,  c.  23, 
that,  where  the  judge  of  an  inferior  court  of  record  is  a  barrister 
of  three  vears'  standing,  no  cause  shall  be  removed  from  thence 
bv  habeas  corpus  or  other  writ,  after  issue  or  demurrer  deliberately 
joined;  that  no  cause  if  once  remanded  to  the  inferior  court  by 
writ  of  procedendo  or  otherwise,  shall  ever  afterwards  be  again 
removed ;  and  that  no  cause  shall  be  removed  at  all  if  the  debt 
or  damages  laid  in  the  declaration  do  not  amount  to  the  sum  of 
five  pounds.  But  an  expedient  having  been  found  out  to  elude  the 
latter  branch  of  the  statute,  by  procuring  a  nominal  plaintiff  to  bring 
an  action,  for  five  pounds  or  upwards  (and  then,  by  the  course 
of  the  court,  the  habeas  corpus  removed  both  actions  together), 
it  is  therefore  enacted  by  statute  12  Geo.  i,  c.  29,  that 
the  inferior  court  may  proceed  in  such  actions  as  are  under  the 
value  of  five  pounds,  notwithstanding  other  actions  may  be  brought 
against  the  same  defendant  to  a  greater  amount.  And  by  statute 
of  19  Geo.  Ill,  c.  70,  no  cause  under  the  value  of  ten  pounds 
shall  be  removed  by  habeas  corpus;  or  otherwise,  into  any  superior 
court,  unless  the  defendant  so  removing  the  same  shall  give  special 
bail  for  payment  of  the  debt  and  costs. 

^But  the  great  and  efificacious  writ,  in  all  manner  of  legal  con- 
finemeiiT,  is  that  of  habeas  corpus  ad  subjiciendum:  directed  to  the 
person  detaining  another,  and  commanding  him  to  produce  the 
Dody  of  the  prisoner,  with  the  day  and  cause  of  his  caption,  and 
detention,  ad  faciendum,  subjiciendum,  ct  recipiendum,  to  do,  sub- 
mit to,  and  receive  whatsoever,  the  court  or  judge  awarding  siicTi 
writ  shall  consider  in  that  behalf.  This  is  a  high  prerogative  writ, 
and  therefore  by  the  common  law  issuThg  out  of  the  court  of  king's 
bench,  not  only  in  term  time  but  also  during  the  vacation,  by  a 
fiat  from  the  chief  justice  or  any  other  of  the  judges,  and  running 
into  all  parts  of  the  king's  dominions ;  for  the  king  is  at  all  times 
entitled  to  have  an  account  why  the  liberty  of  any  of  his  subjects 
is  restrained,  wherever  that  restraint  may  be  inflicted.  Jf  it  issues^ 
in  vacation,  it  is  usually  returnable  before  the  judge  himself  who 
awarded  it,  and  he  proceeds  by  himself  thereon  :  unless  the  term 
shall  intervene  and  then  it  may  be  returned  in  court.  Indeed  if  the 
party  were  j^rivileged  in  the  court  of  common  pleas  and  exchequer, 
as  being  (or  su])posed  to  be),  an  officer  or  suitor  of  the  court, 
nn  habeas  corpus  ad  subjiciendum  might  also  by  common  law 
have  been  awarded  from  thence;  and  if  the  cause  of  imprisonment 
were  j)alpal)1y  illegal,  they  might  have  discharged  him ;  but,  if 
he  were  committed  for  any  criminal  matter,  they  could  only  have 
rcmandcfl    him,  or  taken   bail    for  his  appearance   in   the   court  of 


f     I  IJAlliiAS   courts,    I.\    CliXEKAL.  683 

king's  bench,  wliich  occasioned  the  common  pleas  for  some  time 
to  discountenance  such  appHcations.  But  since  the  mention  of 
the  kind's  bench  and  common  pleas,  as  co-ordinate  in  this  juris- 
diction, by  statute  i6  Car.  i,  c.  lo,  it  hath  been  holden,  that  every 
subject  of  the  kingdom  is  ccjually  entitled  to  the  benefit  of  the 
common  law  writ,  in  either  of  those  courts,  at  his  option.  It  hath 
also  been  said  and  by  very  respectable  authorities,  that  the  /'ike 
habeas  corpus  may  issue  out  of  the  court  of  chancery  in  vacation ; 
but  upon  the  famous  application  to  Lord  Nottingham  by  Jenks, 
notwithstanding  the  most  diligent  searches,  no  precedent  could 
be  found  where  the  chancellor  had  issued  such  a  w-rit  in  vacation ; 
and  therefore  his  lordship  refused  it. 

In  the  king's  bench  and  common  pleas  it  is  necessary  to  apply 
foTT'il  by  nrotioTrTo'the  court,  as  in  the  case  of  all  other  preroga- 
tive Wriis~(  cfrt'i  or  a  ri.  proTiibifion,  mandamus,  etc.,)  which  do  not 
issue  as  of  mere  course,  without  showing  some  probable  cause 
why  the  extraordinary  power  of  the  crown  is  called  in  to  the 
party's  assistance.  For,  as  was  argued  by  Lord  Chief  Justice 
Vaughan  (r>ushers  Case,  2  Jon.  13),  "it  is  granted  on  motion,, 
because  it  cannot  be  had  of  course,  and  tTi^e" T^TETTereTore"' no  neces- 
^ty  to  grant  it ;  for  the  court  ought  to  be  satisfied  that  the  party 
hath  a  probable  cause  to  be  delivered."  And  this  seems  the  more 
reasonable  because  (when  once  granted)  the  person  to  whom  it 
IS  directed  can  return  no  satisfactory  excuse  for  not  bringing  up 
the  body  of  the  prisoner.  So  that  if  it  is  issued  of  mere  course, 
Avithout  showing  to  the  court  or  judge  some  reasonable  ground 
for  awarding  it,  a  traitor  or  felon  under  sentence  of  death,  a  sol- 
dier or  mariner  in  the  king's  service,  a  wdfe,  a  child,  a  relation 
or  a  domestic  confined  for  insanity,  or  other  prudential  reasons, 
might  obtain  a  temporary  enlargement  by  suing  out  a  habeas  corpus, 
though  sure  to  be  remanded  as  soon  as  brought  up  to  the  court. 
And  therefore  Sir  Edward  Coke,  when  chief  justice,  did  not  scruple 
in  13  Jac.  I,  to  deny  a  Jiabcas  corpus  to  one  confined  by  the  court 
of  admiralty  for  piracy ;  there  appearing  upon  his  showing,  suffi- 
cient grounds  to  confine  him.  Qn  the  other  hand,  if  a  probable 
ground  be  shown,  that  the  party  is  imprisoned  without  just  cause, 
amf  therefore  hath  a  right  to  be  delivered,  the  writ  of  habeas  corpus 
ig"fhen  a  writ  of  right,  which  "may  not  be  denied,  but  ought  to  be 
granted^tp  everv^  man  that  is  committed  or  detained  in  prison  or 
Otherwise,  restrained,  though  it  be  by  command  of  the  king,  the 
privy  council  or  any  other." 

"In  a  former  part  of  these  commentaries  we  expatiated  at  large 
on  the  personal  liberty  of  the  subject.  This  was  shown  to  be  a 
natural  inherent  right,  which  could  not  be  surrendered  or  for- 
feited, unless  by  the  commission  of  some  great  and  atrocious  crime, 
and  which  ought  not  to  be  abridged  in  any  case  without  the  special 


684  HISTORY  AXD  ORIGIN    OF  THE   WRIT.  §    I 

permissrion  of  law.  A  doctrine  coeval  with  the  first  rudiments  of 
the  Elnglish  constitution,  and  handed  down  to  us  from  our  Saxon 
ancestors,  notwithstanding  all  their  struggles  with  the  Danes  and 
the  violence  of  the  Norman  conquest;  asserted  afterwards  and 
confirmed  by  the  Conquerer  himself,  and  his  descendents ;  and 
though  sometimes  a  little  impaired  by  the  ferocity  of  the  times, 
and  the  occasional  despotism  of  jealous  or  usurping  prmces,  yet 
established  on  the  firmest  basis  by  the  provisions  of  magna  carta, 
and  a  long  succession  of  statutes  enacted  under  Edward  III.  To 
assert  an  absolute  exemption  from  imprisonment  in  all  cases  is 
inconsistent  with  every  idea  of  law  and  political  society ;  and  in 
the  end  would  destroy  c.ll  civil  liberty  by  rendering  its  protection 
impossible :  but  the  glory  of  the  English  law  consists  in  clearly  de- 
fining the  times,  the  causes,  and  the  extent,  when,  wherefore,  and 
to  what  degree,  the  imprisonment  of  the  subject  may  be  lawful. 
This  it  is  which  induces  the  absolute  necessity  of  expressing  upon 
every  commitment  the  reason  for  w^hich  it  is  made ;  that  the  court 
upon  a  habeas  corpus  may  examine  into  its  validity,  and  according 
to  the  circumstances  of  the  case,  may  discharge,  admit  to  bail,  or 
remland  the  prisoner. 

And  yet,  early  in  the  reign  of  Charles  T,  the  court  of  king's 
1>ench,  relying  on  some  arbitrary  precedents  (and  those  perhaps 
misunderstood),  determined  that  they  could  not  upon  a  habeas 
corpus  either  bail  or  deliver  a  prisoner,  though  committed  without 
any  cause  assigned,  in  case  he  was  committed  by  the  special  com- 
mand of  the  king,  or  by  the  lords  of  the  privy  council.  This  drew 
on  a  parliamentary  inquiry,  and  produced  the  Petition  of  Right, 
3  Car.  I,  which  recites  this  illegal  judgment,  and  enacts  that  here- 
after no  freeman  shall  be  so  imprisoned  or  detained.  But  when, 
in  the  following  year,  Mr.  Selden  and  others  were  committed  by 
the  lords  of  the  council,  in  pursuance  of  his  majesty's  special 
command,  imdcr  a  general  charge  of  "notable  contempts  and  stir- 
ring up  sedition  against  the  king  and  government,"  the  judges 
delayed  for  two  terms  (including  also  the  long  vacation)  to  deliver 
an  opinion  how  far  such  a  charge  was  bailable.  .'Xnd  wheti  at 
length  they  agreed  that  it  was,  the\',  however,  annexed  a  condi- 
tion of  finding  sureties  for  the  good  lnhavior,  which  still  protracted 
their  imprisonment,  the  chief  justice,  Sir  Xicholas  Hyde,  at  the 
same  time  declaring  tliat  "if  llir\'  were  again  remanded  for  that 
cause  perha])s  the  court  would  not  afterwards  grant  a  habeas  cor- 
pus, 1)eing  alreiidy  made  ac(|uainted  with  the  cause  of  the  impris- 
onment." I  hit  this  was  heard  with  indignation  and  astonishment 
by  every  lawyer  present;  according  to  Mr.  Selden's  own  acconnt 
of  the  matter,  whose  resentment  was  not  cooled  at  the  distance 
of  four  and  twenty  years." 

'"I  hesc  pitifnl  evasions  give  rise  to  the  statute   ]6  Car.   i,  c.   T0» 


§     I  HABEAS    CORPUS,    IN    GENERAL.  685 

§  8,  whereby  it  is  enacted  that  if  any  person  be  committed  by  the 
king-  himself  in  person,  ur  \)y  his  i)ri\\-  council,  or  by  any  of  the 
members  t!iereiif,  lie  shall  have  granted  nnto  him,  and  without 
a^n\-  (IvVav  uix'u  an}'  pretense  whatsoever,  a  writ  of  habeas  corpus, 
upon  demand  nr  uiotimi  made  lo  the  court  of  king's  bench  or 
x'omm'on  ])leas;  who  shall  lliereupon,  within  three  court-days  after 
tfrc  return  is^made,  examine  and  determine  the  legality  of  such 
commitment,  and  do  what  to  justice  shall  appertain,  in  delivering 
tiailing,  or  remanding  such  prisoner.  Yet,  still  in  the  case  of 
Jenks,  before  alluded  to,  who  in  1676  was  committed  bv  the  king 
in  council,  for  a  turbulent  speech  at  Guildhall,  new  shifts  and  de- 
vices were  made  use  of  to  prevent  his  enlargement  by  law,  the 
chief  justice  (as  well  as  the  chancellor)  declining  to  aw^ard  the 
w'rit  of  habeas  corpus  ad  subjiciendum  in  vacation,  though  at  last 
he  thought  proper  to  aw^ard  the  usual  wTits  ad  deliberandum, 
etc.,  whereby  the  prisoner  was  discharged  at  the  Old  Bailey.  Other 
abuses  had  also  crept  into  daily  practice,  which  had  in  some  measure 
defeated  the  benefit  of  this  great  constitutional  remedy.  The  party 
imprisoning  was  at  liberty  to  delay  his  obedience  to  the  first  writ, 
and  might  wait  until  a  second  and  a  third,  called  an  alias  and  a 
plnrics:  were  issued,  before  he  produced  the  party,  and  many  other 
vexatious  shifts  were  practiced  to  detain  state  prisoners  in  custody. 
But  whoever  will  attentively  consider  the  English  history  may  ob- 
serve that  the  flagrant  abuse  of  any  power  by  the  crown  or  its 
ministers  has  always  been  productive  of  a  struggle  wdiich  either 
discovers  the  exercise  of  that  power  to  be  contrary  to  law,  or 
(if  legal)  restrains  it  for  the  future.  This  was  the  case  in  the 
present  instance.  The  oppression  of  an  obscure  individual  gave 
birth  to  the  famous  Habeas  Corpus  Act,  31  Car.  II,  c.  2,  which  is 
frec|uently  considered  as  another  Magna  Carta  of  the  kingdom ; 
and  by  consequence  and  analogy  has  also  in  subsequent  times  re- 
duced the  general  method  of  proceedings  on  these  writs  (though 
not  within  the  reach  of  the  statute,  but  issuing  merely  at  the  com- 
mon law)  to  the  true  standard  of  law  and  liberty." 

"The  statute  itself  enacts,  i.  That  on  complaint  and  ref[uest. 
in  writing  bv  or  on  behalf  of  ariy^^Trsori  committed  and 
charged  with  any  crime  (unless  committed  for  treason  or  felony 
expressed  in  tlie  warrant;  or  as  accessory,  or  on  suspicion  of  being 
accessory,  before  the  fact,  to  any  petit  treason  or  felony :  or  upon 
s\ispicion  of  such  petit  treason  or  felony,  plainly  expressed  in  the 
-warrant;  or  unless  he  is  convicted  or  charged  in  execution  by  legal 
process),  the  Idrcr chancellor  or  any  of  the  tw^elve  judges,  in  vaca- 
tion, upon  viewing;  a  copy  of  the  warrant,  or  affidavit  that  a  copy 
is  denied,  shall  (unless  the  party  has  neglected  for  two  terms  to 
apply  to  any  court  for  his  enlargement)  aw^ard  a  habeas  corpus 
for   such   prisoner,   returnable   immediately  before   himself  or   any 


686  THE    HABEAS    CORPUS    ACT.  §     I 

Other  of  the  judges ;  and  upon  the  return  made  shall  discharge  the 
party,  if  bailable,  upon  giving  security  to  appear  and  answer  to 
the  accusation  in  the  proper  court  of  judicature.  2.  That  such  writs 
shall  be  endorsed  as  granted  in  pursuance  of  this  act,  and  signed 
by  the  person  awarding  them.  3.  That  the  writ  shall  be  returned 
and  the  prisoner  brought  up  within  a  limited  time,  according  to 
the  distance  not  exceeding  in  any  case  twenty  days.  4.  That  offi- 
cers and  keepers  neglecting  to  make  due  returns,  or  not  deliver- 
ing to  the  prisoner  or  his  agent  within  six  hours  after  demand  a 
copy  of  the  warrant  of  commitment,  or  shifting  the  custody  of  a 
prisoner  from  one  to  another  wfthout  sufficient  reason  or  authority 
(specified  in  the  act),  shall  for  the  first  ofi^ense,  forfeit  £100  and 
for  the  second  offense  £200  to  the  party  grieved,  and  he  be  disabled 
to  hold  office.  5.  That  no  person,  once  delivered  by  habeas  cor- 
pus shall  be  recomnTTTted'for'tTie  same  oflfensF,"' on"  penalty  of  £500. 

6.  That  every  person  committed  for  treas'on  or  felony  shall,  if  he 
•requires  it,  the  first  week  of  the  next  term,  or  the  first  day  of  the 
next  session  of  oyer  'and  terminer,  be  indicted  in  that  term  or 
session  or  else  admitted  to  bail ";  unless  the  king's  witnesses  can- 
not be  produced  at  that  time;  and  if  acquitted  or  if  not  indicted 
and  tried  in  the  second  term  or  session,  he  shall  be  discharged 
from  his  imprisonment  for  such  imputed  ofifense ;  but  that  no 
person,  after  the  assizes  shall  be  open  for  the  county  in  which  he 
is  detained,  shall  be  removed  by  Jiabcas  corpus  till  after  the  assizes. 
are  ended,  but  shall  be  left  to  the  justice  of  the  judges  of  assize. 

7.  That  any  such  prisoner  may  move  for  and  obtain  his  Jiabcas 
corpus  as  well  out  of  the  chancery  or  exchequer  as  out  of  the 
king's  bench  or  common  pleas ;  and  the  lord  chancellor  or  judges 
denying  the  same,  on  sight  of  the  warrant  or  oath  that  the  same 
is  refused,  forfeit  severally  to  the  person  grieved  the  sum  of  500 
potmds.  8.  That  this  writ  of  habeas  corpus  shall  run  into  the 
counties  palatine,  cinriuc  ports,  and  other  privileged  places,  and  the 
islands  of  Jersey  and  (Guernsey.  Q.  That  no  inhabitant  of  Eng- 
land (excejit  per.sons  contracting,  or  convicts  praying,  to  be  trans- 
ported or  having  committed  some  capital  ofifence  in  the  ])lace  to 
which  they  are  sent)  shall  be  sent  prisoner  to  Scotland,  Ireland, 
jersey,  (iuernsey,  or  any  places  beyond  the  seas,  within  or  without 
the  king's  dominions,  on  i)ain  that  the  partv  committing,  his  ad- 
visers, aiders  and  assistants,  shall  forfeit  to  the  party  aggrieved 
a  sum  not  less  than  500  pounds,  to  be  recovered  with  treble  costs; 
shall  be  disabled  to  Ix'ar  any  office  of  trust  or  profit:  sliall  incur 
the  penahies  of  pracuiuiiire,  and  shall  be  incapable  of  the  king's 
parck)!!."' 

"This  is  the  substance  of  that  gri'al  .ind  iinp<>ri.-ml  statute;  which 
extends  (we  mav  observe)  only  to  the  case  of  commitments  for 
sucli  criminal  cliarge,  as  can   ])roducc  no  inconvenience  to  public 


§    I  HABEAS    CORPUS,    IX    GENERAL.  68/ 

justice,  by  a  temporary  enlargement  of  the  prisoner ;  all  other  cases 
of  unjust  imprisonuTent  beinj^  left  to  the  habeas  corpus  at  common 
law.  But  even  upon  writs  at  the  common  law  it  is  now  expected 
by  the  court,  agreeable  to  ancient  precedents  and  the  spirit  of  the 
act  of  parlianient,  that  the  writ  should  be  immediately  obeyed, 
without  waiting  for  an  alias  or  a  phtrics ;  otherwise  an  attachment 
will  issue.  By  which  admirable  regulations,  judicial  as  well  as 
parliamentar}',  the  remedy  is  now  complete  for  removing  the  injury 
of  unjust  and  illegal  confinement.  A  remedy  the  more  necessary, 
because  the  oppression  does  not  always  arise  from  the  ill-nature, 
but  sometimes  from  the  mere  inattention  of  government.  For  it 
frequently  happens  in  foreign  countries  (and  has  happened  in  Eng- 
land during  temporary  suspensions  of  the  statute)  that  persons 
apprehended  upon  suspicion  have  suffered  a  long  imprisonment, 
merely  because  they  were  forgotten." 

"The  satisfactory  remedy  for  the  injury  of  false  imprisonment, 
is  by  action  of  trespass  z'i  et  ariuis,  usually  called  an  action  of  false 
imprisonment ;  which  is  generally  and  almost  unavoidably  accom- 
panied wMth  a  charge  of  assault  and  battery  also;  and  therein  the 
party  shall  recover  damages  for  the  injury  he  has  received ;  and 
also  the  defendant  is,  as  for  all  other  injuries  committed  with 
force,  or  zn  cl  armis,  liable  to  pay  a  fine  to  the  king  for  violation 
of  the  public  peace."    3  Rlackstone's  Commentaries,  130  ff. 

"*  *  *  The  date  of  its  origin  cannot  now  be  ascertamed.  Traces  of  its 
existence  are  found  in  the  Year  Books  (48  Edw.  iii,  22;)  and  it 
appears  to  have  been  familiar  to,  and  well  understood  by,  the  judges  in 
the  reign  of  Henry  VI.  In  its  early  history  it  appears  to  have  been  used 
as  a  means  of  relief  from  private  restraint.  The  earliest  precedents  where 
it  was  used  against  the  crown  are  in  the  reign  of  Henry  VII.  Afterwards 
its  use  became  more  frequent,  and  in  the  reign  of  Charles  I  it  was  held 
an  admitted  constitutional  remedy;  Hurd,  Hab.  Cor.  145;  Church,  Hab. 
Cor.  3.  In  writing  of  procedure  in  the  thirteenth  century,  the  recent  work 
which  throws  so  much  new  light  upon  the  early  history  of  the  English 
law,  says:  "Those  famous  words  habeas  corf^us'  are  making  their  way 
into  divers  writs,  but  for  any  habitual  use  of  them  for  the  purpose  of  in- 
vestigating the  cause  of  imprisonment  we  must  wait  until  a  later  time." 
There  is  also  a  reference  to  what  is  termed  the  use  of  habeas  corpus  at 
"one  time  a  part  of  the  ordinary  mesne  process  in  a  personal  action,"  also 
referred  to  as  the  "Bractonian  process  which  inserts  a  habeas  corpus  be- 
tween attachment  and  a  distress."  which  (habeas  corpus)^  a  little  later 
seems  to  disappear.  No  other  allusion  is  made  to  the  subject;  2  Poll.  & 
Maitl.   584.  591- 

A  still  later  writer  who  is  as  earnest  in  tracing  the  fountains  of  English 
law  to  a  Roman  source,  as  the  writers  last  quoted  are  indisposed  to  do  so. 
says  on  the  subject: 

"The  presence  in  the  Pandects  of  every  important  doctrine  of  habeas 
corpus  is  an  interesting  fact,  and  suggests  that  the  proceeding  probably 
came  to  England,  as  it  did  to  Spain,  from  the  Roman  law.  There  is  no 
evidence,  so  far  as  I  have  been  able  to  discover,  that  the  process  was  of 
British  or  Teutonic  origin.  It  is  fully  described  in  the  forty-third  book 
of  the  Pandects.     The  first  text  is  the  line  from  the  Perpetual  Edicts,  ''ait 


688  ORIGIN  OF  THE  WRIT.  §    I 

t>rctor;  qucm  libcrum  dolo  malo  refines,  exhibeas."  "The  praetor  declares: 
produce  the  freeman  whom  you  unlawfully  detain."  The  writ  was  called 
the  interdict  or  order;  "dc  homine  libero  cxhibcndo." _  After  quoting  this 
article  of  the  Edict  the  compilers  of  the  Pandects  introduced  the  com- 
mentary of  Ulpian  to  the  extent  of  perhaps  two  pages  of  the  modern  law 
book,  and  the  leading  rules  which  he  derives  from  the  text  are  law,  I 
believe,  today  in  England,  and  in  America.     Thus  he  says : 

"The  writ  is  devised  for  the  preservation  of  liberty,  to  the  end  that  no 
one   shall   detain   a   free  person." 

"The  word  freeman  includes  every  freeman,  infant  or  adult,  male  or 
female,  one  or  man}',  whether  sui  juris,  or  under  the  power  of  another. 
For   we   only   consider   this — Is   the   person   free?" 

"He  who  does  not  know  that  a  freeman  is  detained  in  hrs  house  is  not 
in  bad  faith;  but  as  soon  as  he  becomes  aware  of  the  fact  he  becomes  in 
bad    faith." 

"The  praetor  says  "exliibcas"  (produce,  exhibit).  To  exhibit  a  person 
is  to  produce  him  openly,  so  that  he  can  be  seen  and  handled." 

"This  writ  may  be  applied  for  by  any  person;  for  no  one  is  forbidden 
to   act   in   favor   of   liberty." 

And  to  this  commentary  of  Ulpian  the  compilers  also  add  some  extracts 
from  Venuleuis,  who,  among  other  things,  says : 

"A  person  ought  not  to  be  detained  in  bad  faith,  for  any  time  and  so 
no  delay  should  be  granted  to  the  person  who  detains  him.  In  other 
words,  a  writ  of  habeas  corpus  should  be  returnable  and  heard  instanter." 

"It  seems  certain  that  this  writ  might  have  been  applied  for  in  Britain 
during  the  four  centuries  of  Roman  occupation,  at  least,  when  not  sus- 
pended by  a  condition  of  martial  law;  and  after  the  restoration  of  the 
Christian  Church  in  the  seventh  century,  and  the  occupation  of  judicial 
positions  by  bishops  and  other  learned  clerics,  familiar  with  such  procedure, 
it  is  not  unreasonable  to  assume  that  it  was  revived  and  took  its  place 
in    English   law."    Howe,    Studies   in  the    Civil   Law,   54." 

*****  The  English  colonists  in  America  regarded  the 
privilege  of  the  writ  as  one  of  the  dearest  birthrights  of  Britons ;  and 
sufficient  indications  exist  that  it  was  frequentlj^  resorted  to.  The  denial 
of  it  in  Massachusetts  by  Judge  Dudley,  in  1689,  to  Rev.  John  Wise,  im- 
prisoned for  resisting  the  collection  of  an  oppressive  and  illegal  tax,  was 
made  the  subject  of  a  civil  action  against  the  judge,  and  was,  moreover, 
denounced  as  one  of  the  grievances  of  the  people,  in  a  pamphlet  published 
in  1689  on  the  authority  of  "the  gentlemen,  merchants  and  inhabitants  of 
Boston  and  the  country  adjacent."  In  New  York  in  1707  it  served  to  effect 
the  release  of  the  Presbyterian  ministers  Makemie  and  Hampton  from  an 
illegal  warrant  of  arrest  issued  by  the  governor,  Cornbury,  for  preaching 
the  gospel  without  license.  In  New  Jersey  in  1710  the  assembly  denounced 
one  of  the  judges  for  refusing  the  writ  to  Thomas  Gordon,  which  they 
said  was  the  "undoubted  right  and  great  privilege  of  the  subject."  In 
South  Carolina  in  1692  the  assembly  adopted  the  act  of  31  Car.  II.  This 
act  was  extended  to  Virginia  by  Queen  Anne  early  in  her  reign  while  in 
tlie  assembly  of  Maryland  in  1725  the  benefit  of  its  provisions  was  claimed 
independent  of  royal  favor,  as  the  "birtliright  of  the  inhabitants."  The 
refusal  of  parliament  in  1774  to  extend  the  law  of  habeas  corpus  to  Canada 
was  denounced  by  the  Continental  congress  in  September  of  that  year  as 
oppressive,  and  was  subsef|uently  recounted  in  the  Declaration  of  Independ- 
ence as  one  of  the  manifestations  on  the  part  of  the  British  government 
of  tyranny  over  the  colonies;  Hurd.  Hab.  Cor.  T09-120."  Bouvier  (Rawles' 
VA.)    Art.   Habeas  Corpus. 

"Ilahras  corpus — A  urit  directed  to  the  person  detaining-  an- 
other and   conimancHnjj  him    to  prcuhicc   the  body  of  the  prisoner 


f    I  HABEAS    CORPUS,    IN    GENERAL.  689 

jRt  a  certain  time  and  place;  with  the  day  and  cause  of  his  cap- 
i.Ioii_arKl  detention,  to  do,  submit  to  and  receive  whatsoever  the 
"court  or  judges,  awarding  the  writ  shall  consider  in  that  belialf." 
Bouvier  (Rawles'  Ed.) 

"The  writ  of  habeas  corpus  may  be  defined  as  a  legal  process 
designed  and  employed  to  give  summary  relief  against  illegal  re- 
straints of  personal  liberty,"    2  Spelling,  Inj.  and  Ex.  Rem.  §  1152. 

For  further  authorities  on  the  origin  and  history  of  the  writ  see :  Wil- 
mot's  Opinions,  yy  ff ;  Colquhoun,  Sum.  Rom.  Civ.  Law,  section  387 ;  Amos, 
Eng.  Const.  171 ;  i  Hallam,  Const.  History  of  Eng. ;  Hurd,  Hab.  Corpus; 
Church,  Hab  Cor.;  Taj'lor,  2  Origin  and  Growth  of  English  Constitution, 
p.  380  fif;  2  Kent  Com.  26  ff;  Hale,  History  of  Common  Law,  383;  Cob- 
bett,   Pari.   Hist.   Eng.  487,   ff;   Crabbe,   Hist.   Eng.   Law,  525. 


2.     Proper  function  of  the  writ. 

Ex  PARTE  COUPLAND. 
1862.     Supreme  Court  of  Texas.     26  Tex,  387. 

Moore,  J, — ,j.he  relator  (Coupland)  applied  to  the  Chief  Justice 
on  the  i6th  of  July,  1862,  in  vacation  for  a  writ  of  habeas  corpus, 
alleging  that  he  was  illegally  restrained  of  his  liberty  by  R.  T, 
Allen,  in  Travis  County,  as  he  believed,  "without  any  order  or 
process  whatever,  or  any  color  of  either."  The  writ  issued  and 
Allen  made  return  that  the  relator  was  placed  originally  in  his 
custody  by  order  of  R,  J,  Townes,  provost  marshal  of  Travis 
county ;  but  that  before  the  service  of  the  writ  upon  him,  the  relator 
had  been  enrolled  as  a  soldier  of  the  Confederate  states,  as  a  con- 
scri]5t,  under  the  act  of  the  congress  of  the  Confederate  states,  en- 
titled "An  act  to  further  provide  for  the  public  defence,"  and 
had  selected  his  company,  been  attached  to  it  and  had  been  dis- 
charged from  his  original  detention ;  and  at  the  service  of  the  writ, 
was  only  detained  as  a  soldier  of  the  Confederate  states,  belonging 
to  a  regiment  of  which  respondent  was  colonel.  On  the  hearing, 
the  relator  was  remanded  into  the  custody  of  the  respondent.  From 
this  judgment  the  relator  prosecutes  this  appeal. 

The  first  question  for  our  decision  arises  upon  a  motion  by  the 
attorney  general  who  appears  on  behalf  of  the  respondent  Allen, 
that  tEe  application  should  for  the  present  be  continued,  because, 
as  he  alleges,  the  relator,  since  he  v.-as  remanded  by  the  judg- 
ment of  the  chief  justice  into  the  custody  of  the  respondent,  as 
a  soldier  in  the  regiment  of  which  he  was  in  command  has  deserted 
and  is  no  longer  in  the  custody  or  under  the  control  of  the  re- 
spondent.    This  motion  is  founded  on  an  affidavit  of  a  lieutenant 


the  c 


690  EX    PARTE   COUPLAND.  §    I 

belons^ing  to  said  regiment,  from  which  it  appears  that  the  relator, 
together  with  other  members  of  said  regiment,  after  his  return  to 
it,  was  furloughed  until  the  15th  of  September  last,  at  the  expira- 
tion of  which  time  he  was  ordered  to  report  for  duty  at  Tyler^ 
Smith  County,  Texas,  where  the  regiment  was  ordered  to  ren- 
dezvous ;  but  up  to  the  25th  of  September,  when  affiant  left  camp, 
he  had  not  joined  the  regiment  or  been  heard  of  by  him. 

This  motion  is  urged  upon  two  distinct  grounds ;  first,  that 
e  court  has  no  jurisdiction  on  the  application,  if  the  relator  has 
escaped  from  the  custody  to  which  he  was  remanded  by  the  Judg- 
ment from  which  he  appeals.  -  Secondly,  if  the  court  has  juris- 
diction, it  will  not  act  upon  his  application  while  he  is  at  large. 
There  is  no  doubt  that  in  answer  to  the  writ  the  respondent  must 
produce  the  body  of  the  person  alleged  to  be  illegally  detained,'  if 
in  his  custody  or  under  his  control  at  the  service  of  the  writ,  unless 
excused  from  so  doing  by  the  circumstances  indicated  in  art.  149, 
Code  Criminal  Procedure ;  and  that  a  return  to  the  writ  unaccom- 
panied by  the  body  will  be  scanned  with  great  caution.  Hurd  on 
Habeas  Corpus  244.  And  although  this  is  to  prevent  evasions  oi 
the  writ  and  to  secure  the  liberty  of  the  citizen,  yet  if  the  party 
has  been  released  from  custody,  previous  to  the  service  of  the 
writ,  its  object  and  puqx^se  has  been  accomplished,  and  the  court 
will  make  no  order  on  the  subject.  Commonwealth  v.  Chandler, 
II  Mass.  83;  U.  S.  V.  Davis,  5  Cr,  C.  C.  652.  The  only  object  of 
the  zorit  is  to  relieve  the  party  detained  from  the  illegal  restraint; 
if  this  is  accomplished  before  the  jurisdiction  of  the  court  attaches 
by  the  service  of  the  writ,  there  is  nothing  upon  which  it  can  at- 
tach. If  is  not  the  object  or  purpose  of  the  zvrit  to  punish  the 
respondent,  or  afford  the  party  redress  for  his  illegal  detention. 
But  the  question  occupies  a  different  attitude  after  the  jurisdic- 
tion of  the  court  has  l>een  attached.  It  cannot  then  be  defeated 
by  the  wrongful  act  of  either  of  the  parties.  ^  It  is  expressly  pro- 
vided by  the  code  of  criminal  procedure  (art,  762),  that  upon  the 
hearing  of  an  appeal  in  habeas  corpus  cases,  the  defendant  (who  un- 
doubtedly must  be  understood  to  be  the  prisoner  or  party  detained), 
need  not  be  [personally  present. 

The  second  ground  of  the  nwtion,  we  think  as  a  question  of 
practice,  is  well  taken,  if  the  facts  of  this  case  call  for  its  applica- 
tion :  and  were  it  not.  also,  that  from  the  character  of  the  case,  we 
think,  the  public  interest  will  be  better  subserved  by  hearing  the 
appeal  than  bv  its  continuance.  The  rule  of  the  court  not  to  hear 
appr"aTs~m  "mtiilnat  causes  where  the  defendant  has  escaped,  to 
which  this  case  is  claimed  to  be  analogous,  being  merely  a  matter 
'>f  i)ractice,  depending  in  its  application  to  particular  cases  upon 
ihc  discretion  of  the  court,  and  as  the  affidavit  relied  upon  does 
not  show  conclusively  that  the  relator  has  escaped  froni  the  custody 


§    I  HABEAS    CORPUS,    IN    C.KXEKAL.  69I 

to  which  he  was  committed,  and  may  not,  after  but  a  tcmporan- 
delay,.have  joined  his  regiment,  the  motion  for  a  continuance  will 
DC  c^rruled. 

*"Tne  questions  arising  upon  the  merits  on  this  application  have 
been  argued  with  great  interest  and  zeal.  Several  of  the  points, 
however,  n^.ade  by  the  counsel  for  the  relator,  and  most  elaborately 
discussed,  can  have  no  influence  in  the  decision  of  the  case,  as 
presented  by  the  appeal,  and  doubtless  had  none  in  its  determina- 
tion by  the  chief  justice,  though  out  of  abundant  caution  he  per- 
mitted relator's  counsel  to  save  by  bills  of  exception  every  question 
suggested  by  them  as  having  any  possible  bearing  upon  the  rights 
of  their  client. 

As  we  have  already  said,  a  party's  rii^ht  to  the  lyrit  docs  not 
ciTp'ofuT  upon  the  legality  or  illegality  of  his  original  caption,  but 
Yrpon' the  legality  or  illegality  of  his  present  detention.  Dew's  case. 
"tS  Penn,  37;  Rex.  v.  Gordon,  i  Darn.  &  Aid.  s~2  n;  Ilurd,  (ni 
ITab.  Cor.  255.  256.  The  relator  was  not,  when  the  writ  was 
served,  detained  by  virtue  of  the  order  of  the  present  provost  mar- 
shal, by  whose  order  he  seems  first  to  have  been  arrested.  We 
will  not  therefore,  consume  time  by  a  discussion  of  the  questions 
that  have  been  raised,  as  to  the  right  or  authority  of  a  military 
officer  in  time  of  war  to  declare  martial  law,  or  the  efifect  of  sucli 
declaration  when  made,  or  upon  whom  martial  law  when  declared 
can  operate,  or  the  nature  and  character  of  such  law.  Nor  will  it  be 
at  all  necessary  that  we  should  inquire  into  the  regularity  of  the  pro- 
ceedings of  the  enrolling  officers  by  whom  relator  was  enrolled  as  a 
soldier,  for.  if  he  is  subject  to  conscription,  this  court  is  not  the  ap- 
propriate tribunal  for  correcting  the  errors,  if  any,  into  which  these 
officers  may  have  fallen  in  discharge  of  their  appropriate  military 
duties ;  but  his  application  for  redress  must  be  made  to  their 
superior  officers,  or  other  proper  military  authorities.  Art  756, 
Code  of  Criminal  Procedure.     ""     *     * 

(So  much  of  the  opinion  as  relates  to  the  constitutionality   of 
the  "Conscript  Law"  is  omitted.) 


PEOPLE  EX  REL.   STOKES  v.  RLSELEY.   SITERTFF. 
1885.     Supreme  Court  of   New   York.     38   Hun.   280. 

Appe.\l  from  an  order  of  the  county  judge  of  Ulster  Countv. 
dTsmissmg  a  writ  of  habeas  corpus  issiTecl  upon  the  applicatiori""of 
'tiie  relator.  ~  ~^" — 

The   relator,   upon   the   thirty-first   of  January.    1885,   was   con^ 
victed  before.  F.  D.  L.   Montavne,  a  justice  of  the  peace  of  the 


692  STOKES  V.    RISELEV,   SHERIFF.  §     I 

town  of  Marbletown,  in  Ulster  County,  uf  the  crime  of  having- 
disposed  of  personal  property,  upon  which  he  liad  thcretof(.re 
executed  a  mortg-age,  and  was  sentenced  to  pay  a  fine  of  $250, 
'and  to  stand  committed  to  the  county  jail  of  Ulster  County  until 
'the  fine  be  satisfied,  not  exceeding  one  year.  Not  paying  the  fine 
he  was  committed  to  the  county  jail,  whereupon  he  sued  out  a 
writ  of  habeas  corpus,  be f or e^^  thejgoun ty  , j udge  of  Uls te r^  County. 

Landox.  J. : 

The  conviction  of  the  relator  w^as  valid.  (Penal  Code,  §  571). 
He  therefore  is  not  entitled  to  his  discharge,  because  he  should 
suffer  proper  punishment.  (The  People  ex  rcl.  Devoe  v.  Kelk}', 
97  N.  Y.  215).  But  he  was  convicted  before  a  court  of  special 
sessions  held  by  a  justice  of  the  peace.  Whatever  punishment  a 
court  of  record  might  impose  upon  conviction  for  this  offense. 
a  court  of  special  sessions  is  restricted  by  section  717  of  the  code 
of  crimiriar  procedure ;  "the  fine  cannot  exceed  $50,  uor  the  im- 
prisonment six  months."  Here  the  fine  was  $250  with  this  addi-*^ 
lion,"  "and  stand  committed  to  the  county  jail  of  Ulster  County 
until  the  fine  be  satisfied,  not  exceeding  one  year."  Section  718 
of  the  Code  of  Criminal  "Procedure  provides  that  "a  judgment 
tiiat  the  defendant  pay  a  fine  may  also  direct  that  he  be  imprisoned 
until  the  fine  be  satisfied,  specifying  the  extent  of  the  imprison- 
ment, which  cannot  exceed  one  day  for  every  dollar  of  the  fine." 
These  sections  are  in  part  five,  entitled,  "of  proceedings  in  courts 
of  special  sessions  and  police  courts."  Section  718  is  a  transcript 
of  section  484  in  part  four,  entitled  "of  the  proceedings  in  criminal 
actions  prosecuted  by  indictment." 

It  thus  seems  that  the  days  of  imprisonment  cannot  exceed  the 
dollars  of  fine  in  the  court.  We  think  a  court  of  special  sessions 
could  not  pronounce  the  sentence  thus  imposed.  The  suggestioti  is 
mruTe'lTTaFtTie'  sentence  is  valid  to  the  extent  of  fifty  dollars  and 
a  liability  to  fifty  days'  imprisonment.  We  think  not;  non  constat 
that  the  relator  would  not  immediately  have  paid  the  fifty  dollars 
if  that  had  been  imj^osed,  and  thus  have  escaped  im])risonment 
.altogether.  Twr)  hundred  and  fifty  dollars  might  be  quits  beyond 
his  ability  to  ])ay.  'I'hus  the  illegal  sentence  confines  him  in  jail, 
when  a  legal  one  niight  not,  and  in  this  respect  the  case  is  distin- 
guishable from  People  ex  rel.  Trainer  v.  P)aker   (89  N.  Y.  460.) 

The  People  ex  rel.  Devoe  v.  Kelly  is  authority  to  the  effect  that 
a  writ  of  habeas  corpus  is  the  proper  remedy.  The  relator  is  de- 
tained upon  an  invalid  judgment;  it  needs  a  valid  one  legally 
to  detain  him.  Section  2016  of  the  code  of  civil  procedure  denies 
habeas  corpus  to  a  person  "where  he  has  been  committed,  or  is 
<lctaincd  by  virtue  f)f  the  final  judgment  or  decree  of  a  competent 
tribunal."  It  was  held  iti  I'eople  ex  rel.  Tweed  v.  Piscomb  (60 
^-  ^-  550).  as  explained  People  ex  rel.  Woolf  v.  Jacobs   (66  N. 


§    I  HABEAS   COKrUS^    IN    GEiNEUAL.  693 

Y.  10),  that,  when  prononncint^  its  sentence  the  court  has  exhausted 
its  authority,  if  it  proceed  further  to  pronounce  additional  sentences, 
such  additions  are  void.  Thus  ''the  final  judg'ment"  must  be  "of 
a  competent  tribunal,"  and  where  the  competency  to  pronounce 
it  is  exhausted,  or  never  existed,  it  does  not  come  within  the  defi- 
nition of  the  final  judgment  as  to  which  habeas  corpus  is  ineffective. 
It  is  suggested  that  the  relator's  remedy  is  by  appeal.  No  doubt, 
upon  appeal,  the  court  could  set  aside  the  illegal  judgment  and 
pronounce  a  legal  one.  (Code  of  Crim.  Pro.  §§  543,  764.)  But, 
meantime,  it  is  true  that  the  relator  is  unlawfully  detained  upon 
an  invalid  sentence,  and  he  should  be  speedily  freed  from  that 
restraint.  Since  we  cannot  detain  him  upon  this  sentence,  and  in 
this  ]:irocec(ling  cannot  ourselves  pronounce  any,  and  as  it  is  ini; 

Sracticable  to  remand  him  to  the  court  of  special  sessions,  we  must 
ischarge  him. 

The  order  of  the  county  judge  is  reversed,  and  the  defendant 
discTTarged. 
T)fder  reversed  and  relator  discharged. 

See  also  Commonwealth  v.  Chandler,  11  Mass.  83;  Wales  v.  Whitney. 
114  U.  S.  564;  Kirby  v.  State,  62  Ala.  51;  State  v.  Morales,  38  La.  Ann. 
919;  McCulIough,  Ex  parte,  35  Cal.  97;  Arkansas  Industrial  Co.  v.  Neel, 
48  Ark.  283;  Mooney,  Ex  parte,  26  W.  Va.  36. 


Ex  PARTE  STRAHL. 
1864.    Supreme  Court  of  Iowa.     16  la.  369. 

Wright.  Ch.  J. — Petitioner  was  arrested  and  held  in  custody 
under  a  writ  issued. by_W.~'H.  Leas  as  Mayor  of  the  city  of  Des 
Moines,  for^n  ofTense  against  the  ordinances  of  said  city.  Jn..said 
petition,  Jie_c[ainTS  that  said  Leas,  is  not  the  mayor  of  said  cit}', 
andTRat  he  was  never  elected  as  such  mayor,  and  that  he  had  no 
power  or  authority  to  issue  said  writ.  The  answer  sliows  that  said 
neas~\vas  declared  duly  elected,  that  a  certificate  of  election  was 
issued  by  tlie  proper  oflicer  in  due  form,  that  he  took  the  oath  and 
executed  the  bond  required  by  law,  entered  upon  the  discharge 
of  his  duties,  and  was  in  the  exercise  of  the  same  as  such  mayor, 
at  the  time  of  the  issuing  of  said  writ. 

Xo  this  answer  a  demurrer  is  interjMised,  claiming,  in  substance, 
that  it  does  not  show  that  said  Leas  was  mayor  dc  jure,  and  that 
though  an  ofiicer  de  facto,  this  would  not  authorize  him  to  exer- 
cise the  duties,  issue  the  writ,  and  hold  the  petitioner  in  custodv. 

There  is  a  clear  distinction  between  a  clear  bold  assumption 
of   right    to   exercise   the    duties   of   an   ofti.cer   and   their   exercise 


6y4  KX  I'AKIK  STKAHL.  S     I 

under  colorj)f_rig^ht.  If,  A,  without  any  pretense  of  an  election, 
yr  in  appointment  to  an  office,  or  without  any  claim  of  right, 
should  issue  a  process  and  cause  the  arrest  of  an  alleged  offender, 
we  would  not  hesitate  to  hold  the  restraint  illegal  and  discharge 
the  prisoner.  But  where  it  appears  as  in  this  answer,  that  no  other 
person  was  exercising  or  discharging  the  duties  of  the  office,  that 
the  incumbent  had  been  declared  duly  elected,  received  his  certifi- 
cate of  election,  filed  his  bond,  and  entered  upon  the  discharge  of 
his  duties,  and  was  in  the  exercise  thereof,  in  issuing  the  writ 
for  the  arrest  of  the  prisoner,  and  detaining  him,  a  very  different 
question  arises,  and  in  such  case,  the  legality  of  the  restraint,  in 
our  opinion,  cannot  be  inquired  into  by  habeas  corpus. 

The  respondent  luider.such  circumstances,  holds  the  office  under 
.color  of  right,  and  though  not  an  officer  dc  jure,  his  right  to  hold 
it  will  not  be  inquired  into  in  this  proceeding,  but  a  direct  proceed- 
ing should  be  instituted  to  first  determine  the  legality  of  tfie"1iold- 
ing. 

It  is  claimed  in  the  petition  that  one  Absolom  Morris  was  elected 
to  said  office,  so  declared,  and  that  he  and  not  respondent  is  the 
real  and  actual  mayor  of  said  city.  With  this  statement  it  is  but 
too  manifest,  that  the  object  of  this  proceeding  in  effect  is'  to  try 
and  contest  the  right  of  Leas  to  said  office,  or  to  convert  this 
writ  into  a  contested  election  proceeding.  That  the  investigation 
may  stop  short  of  an  inquiry  into  all  the  facts  attending  said  elec- 
tion, whether  the  one  or  the  other  received  a  majority  of  the  legal 
votes,  cast  at  the  election,  whether  the  canvassers  erred  in  grant- 
ing the  certificate  of  election  to  respondent  rather  than  his  com- 
petitor, cannot  afl'ect  the  question  ;  for,  after  all  the  purpose  and 
object  of  this  j)rocec(ling  is  the  same,  and  such  inquiry  we  do  not 
feel  authorized  to  make.  If  decided  cither  way,  no  right  would 
be  settled  bctwTcn  the  real  contestants.  We  can  do  no  njorethnn 
say  that  this  ]H'isoncr  is  or  is  not  Ki^ally  dctaijie^b  The~very' 
iTaTure  and  framework  of  the  writ  shows  that  this  is  its  sole  office, 
and  that  it  caniv.t  be  converted  into  ]:)roccss  under  which  the  rights 
of  parties  to  official  j^jsition  can  be  settled  and  determined.'  Our 
.statutes  provifle  other  and  more  direct  and  well  understood  and 
settled  methods   for  determining  such   controversy. 

None  of  tlu'se  cases  cit^d  by  the  petitioner  relate  to  a  proceed- 
ing of  this  character,  nor  does  any  of  theiu  hold  that  the  officer 
may  not,  in  such  a  case,  justify,  when  he  is  in  the  actual  discharge 
of  the  duties  of  the  office,  under  color  of  right,  or  an  election  or 
an  appointment,  while  the  following  cases  clearly  su])port  the  fore- 
going views,  and  warrant  us  in  overruling  a  demurrer.  Ex  parte 
Walker,  3  I'..  Nhm.  166;  Wilcox  v.  South,  5  Wend.  235;  Aulamier 
V.  Tlie  Ciovernor,  1  Texas  653  ;  Douglass  v.  Wichlie,  TQ  Conn. 
489- 


§     I  HAP.EAS    CORPUS,    IN    GENERAL.  695 

vDemurrer  oyerruled. 
(Subsequent  opinion  of  Dillon,  ].,  on  rights  of  de  facto  officer 
and  validity  of  his  acts,  omitted.) 

^J^In]}cas  corpus  can  never  be  used  to  serve  the  purpose  of  a  writ  of  Quo 
IVarranixu     Corrigan,  7n    rr,'"37  ^^cTi-  '66;'  Sheehah's   case,   122  Mass.  445T 
"XSfienv.   Burke,  23   Wend.    (N.   Y.)   490;   Hx  parte  Call,  2  Tex.  App.  497; 
State  V.  Bloom,  17  Wis.  521 ;  Strang,  Ex  parte,  21  Ohio  St.  610. 


IN  RE  LEMKUHL 
1887.     Supreme  Court  of  California,     yz  Cal.  53;  13  Pac.  148. 

FooTE,  C. — The  petitioner  was  tried  l^efore  tlie  pohce  court 
of  the  city  of  Oaklanel  for  a  misdemeanor,  viz.,  the  commission 
of  a  nuisance  in  obstructing  Broadway,  a  street  of  said  city.  The 
judgment  "^'as  that  he  "pay  a  fine  of  two  dolliars,  or  be  imprisoned 
until  said  fine  be  duly  satisfied,  at  the  rate  of  one  day's  imprison- 
ment for  each  dollar  of  fine.  The  captain  of  the  police  of  the 
city  of  Oakland  has  him  in  custody,  by  virtue  of  a  writ  of  com- 
mitment issued  from  the  police  court  of  said  city  under  its  judg- 
ment and  conviction  as  aforesaid.  J'he  only  defence  which  the 
defendant  set  up  (as  he  says  in  his  petition  for  the  writ)  whv  he 
should  not  have  been  convicted  and  punished  for  his  alleged  offense, 
was  thathej>vas_ajxthorize^^^  of  the  City  of  Oakland 

to  obstruct  the  street  as  .he  did.  Tlie  complaint  upon  which  the 
d'eTeiidant  was  tried  ]:iroperly  charged  an  offence  against  the  laws 
oT'fhe  state,  as  defined  in  section  370,  Pen.  Code,  and  made  puri- 
I'shabte'as  a  misdemeanor  under  section  372,  same  code.  We  do 
not  perceive  anything  in  the  complaint  or  the  record  of  the  police 
court  which  shows  that  the  defendant  had  any  justification  or  de- 
fense which  would  bar  his  prosecution  for  the  oifense  alleged 
against  him.  And  the  court  which  tried  him  had  jurisdiction  of 
the  offense.  St.  1873-74,  p.  906.  But  the  defendant  contends 
that,  as  a  fact  in  the  case,  he  was  justified  by  reason  of  a  certain 
ordinance  of  the  city  of  Oakland,  in  doing  what  would  otherwise 
have  been  a  violation  of  the  state  law.  This  ordinance  he  quotes 
at  length  in  his  petition  for  a  writ  of  habeas  corpus. 

Thus  it  appears  that  the  court  who  tried  the  defendant  had 
jurisdiction  of  his  person,  and  the  offense  for  which  he  was  tried, 
and  that  it  tried,  convicted  and  sentenced  him,  perhaps,  under 
an  erroneous  view  of  conflicting  laws.  What  this  court  is  now 
asked  to  do  is  to  restore  him  to  liberty  on  a  writ  of  habeas  corpus, 
because  of  the  error  of  law  committed  by  the  trial  court.  We  do 
not  perceive  how,  in  such  a  proceeding,  this  court  can  review  the 


696  EX    PARTE   SNYDER.  §     I 

alleged  erroneous  action  of  the  court  below.  "The  writ  of  habeas 
corpus  was  not  framed  to  retry  issues  of  fact,  or  to  review  the 
proc_eedijags_Q£.^_ legal  trial."  Ex  parte  Bird,  19  Cal.  130.  The 
'petitioner's  contention  only  involves__  a  question  of  mere  error, 
and  thatcannot  be  inquired  into  upon  the  writ  here  invoked,  but 
"only  upon  proceedings  in  error.  Ex  parte  Max,  44  Cal.  579,  581  ; 
Ex  parte  Cohn,  55  Cal.  193,  and  cases  cited. 

The  petition  should  be  dismissed,  and  the  petitioner  remanded 
to  the  custody  of  the  captain  of  the  police  of  the  city  of  Oakland. 

By  the  court.  For  the  reasons  given  in  the  foregoing  opinion, 
petition  dismissed  and  petitioner  remanded. 


Ex  PARTE  SNYDER. 

Court  of  Appeals  of  Missouri.     29  Mo.  App.  256. 

Phillips,  P.  J. — The  petition,  and  accompanying  papers,  and 
the  return  of  the  marshal  of  Jackson  County,  disclose  the  follow- 
ing state  of  facts  :  At  the  May  term  1887,  of  the  Jackson  county 
criminal  court  the  petitioner  was  indicted  by  the  grand  jury  in 
and  for  said  county  for  the  offence  of  an  assault  with  intent  to 
commit  a  rape.  On  the  trial  had  thereon,  at  said  term,  the  jury 
failed  to  agree  and  "were  discharged.  At  tRe'succeeding  term  of 
the  said  court,  towit,  on  the  fifteenth  day  of  September,  i887,""pet1- 
tioner  was  again  ])ut  upon  trial,  and  the  jury  returned  into  court 
the  following  verdict  "We  the  jury  find  the  defendant  guilty. 
and  assess  his  punishment  at  six  months  in  the  county  jail."  Jl'here- 
upon  without  any  motion,  either  by  the  prisoner  or  the  prosecuting 
attorney,  the  court  of  Its  own  motion  ordered  the  veSHct  set-aside, 
and  further  ordered  that  the  jurors  therein  be  forever  disqualified 
as  jurors  in  said  court.  The  court  further  ordered  that  the  cause 
be  set  down  for  retrial  on  the  twenty-sixth  day  of  October,  1887. 
On  thn  da.y  last  named  the  i)risoner  presented  his  petition  to  Hon. 
Turner  A,  Gill,  judge  of  the  circuit  court  of  Jackson  county,  setting 
out  the  facts  aforesaid,  and  praying  for  a  writ  of  habeas  corpus,  to 
secure  the  release  of  the  prisoner  on  the  ground  that  he  could  not 
again  be  put  in  jeopardy,  as  projioscd  by  the  second  trial  of  the 
judge  of  the  criminal  court.  Judge  Ciill,  on  hearing  the  petition, 
and  the  facts,  while  holding  that  the  further  prosecution  of  the 
prisoner  under  said  indictment  was  in  contravention  of  the  con- 
.stitutional  right  of  the  i)risoncr,  yet  refused  to  discharge  him,  as 
he  was  amenable  to  the  punishmicnt  returned  by  the  first  jury. 
and  so  remanded  him  to  the  custody  of  the  marshal.    The  criminal 


§     I  HABEAS    CORPUS,    IM    GENERAL.  69^ 

court  thereupon  continued  said  cause  to  the  next  regular  term,  and 
it  was  again  set  for  trial  on  the  t€nth  day  of  January,  1888.  At 
this  date  the  defendant  filed  his  plea,  in  the  nature  of  a  plea  in 
bar,  setting  up  the  fomier  trial  and  the  proceedings  under  said 
indictment.  The  court  thereupon  reset  the  cause  for  trial  on  the 
thirtieth  day  of  Januan%~i 888",  when  Tt  again  proceeded  to  retry 
thejlefendant..  While  permitting  the  record  of  the  former  trial  to 
GeTead  in  evidence,  the  court,  nevertheless,  instructed  the  jury  to 
disregard  it.  Tlje  jury  returned  a  verdict  of  guilty,  assessing 
the  punishment  at  five  years  in  the  penitentiary.  The  court  en-, 
tered  up  judgment  accordingly.  Thereupon  this  prisoner  makes 
his  application  to  this  court,  for  his  discharge  under  the  writ  of 
habeas  corpus.     *     *     *     * 

II.  The  remaining  question  is,  how  is  the  party  to  obtain  relief 
from  the  legal  wrong  thus  done  him?  .^Xhe  authorities  are  quite 
uniform  in  holding  that  the  proper  course  is  for  the  prisoner  to 
move  in  the  trial  court  for  his  discharge,  or  to  plead  in  bar  the 
former  conviction  or  acquittal.  And  if  this  plea  be  overruled  by 
'"fhat  court,  to  correct  the  error  by  appeal  or  writ  of  error  to  or 
from  the  court  having  appellate  jurisdiction  over  the  ofifence, 
which,  in  this  case,  is  the  supreme  court.  See  authorities  supra; 
I  Bish.  Crim.  Proc.  §  821.  It  is  a  general  rule  that  the  writ  of^ 
habeas  corpus  does  not  perform  the  functions  of  a  urit  of  error. 
Tt  is  an  original  proceeding  in  which  such  judgments  are  not  liable 
to  collateral  attack.  Piatt  v.  Harrison,  6  la.  79;  In  re  Mary  Eaton, 
27  Mich.  I.  Accordingly  our  statute  declares  (section  2648),  that: 
"It  shall  be  the  duty  of  the  court  forthwith  to  remand  the  party, 
if  it  shall  appear  that  he  be  detained  in  custody,  by  virtue  of  the 
final  judgment,  etc.,  of  any  competent  court  of  civil  or  criminal 
jurisdiction,"  etc.  None  of  the  exceptions  enumerated  in  section 
2650  to  this  provision,  afford  any  relief  to  the  petitioner,  as  they 
are  inapplicable  to  the  facts  of  this  case.  Ex  parte  Beoninghausen, 
91  Mo.  301.  The  conclusion  reached  is,  as  we  conceive,  fully 
sustained  by  the  doctrine  announced  in  Ex  parte  Ruthven,  17  Mo. 
541.  The  prisoner  was  put  to  trial  for  murder.  After  the  trial 
had  proceeded  for  several  days,  the  court  discharged  the  jury,  in 
the  absence  of  the  prisoner  and  without  his  consent.  Council  for 
prisoner  thereupon  moved  for  his  discharge,  on  the  ground  that 
the  jury  had  been  illegally  discharged,  and,  of  consequence  the 
prisoner  could  not  be  retried,  having  once  been  in  jeopardy.  This 
motion  having  been  denied,  the  prisoner  applied  to  the  supreme 
court  for  the  writ  of  habeas  corpus.  Gamble,  J.,  who  delivered 
the  opinion,  after  referring  to  the  statute  above  named,  said:  "The 
prisoner  in  this  case  is  imprisoned  on  an  indictment  found  in  a 
court  of  competent  jurisdiction.  Pie  cannot  be  discharged  upon 
habeas  corpus  by  showing  that  he  has  a  defence  to  it ;  and  if  the 


698  MATSOX  V.  SWAXSOX   KT  AL.  §    I 

facts  on  which  he  reUes  be  a  defence  in  law,  they  must  be  pursued 
in  the  court  in  v/hich  the  indictment  is  pending.  •ftp-4b^.«cQuil ..f ai  1 . , 
to  give  them  their,  .proper  effect,  this  court  as  an  appellate  court, 
t^ancorrect  the  error;  but  on  a  habeas  corpus  it  acts  wrtll  no  more 
^jower'  thaii  belongs  to  a  justice  of  the  county  court,  under  the 
habeas  corpus  act,  and  will  not,  under  such  process,  review  the 
proceedings  of  the  circuit  court.  It  is  said  that  the  discharge  of 
the  jury  discharged  the  indictment.  The  circuit  court  has  decided 
otherwise.  Shall  a  justice  of  the  county  court,  on  habeas  corpus, 
review  a  decision,  and  discharge  the  prisoner?  We  think  not, 
nor  will  this  court. 

W£..Jia.Yeno!  mgre  right  to   discharge  the   prisoner  against  the 
established  rules  of  procedure,  than  the  criminal  court  has  to  hold._ 
him  contrary  to  la\v^   He  has  his   remedy,  to  protect  his  liberty, 
and  to  that  we  nmst  remit  liimT 

The  discharge  of  the  'prisoner,  is.  therefore,  refused,  and  he  is 
remanded  to  the  custody  of  the  marshal  of  Jackson  county.  Elli- 
son, J.,  concurs.  Hall,  J.,  absent. 

(So  much  of  the  opinion  as  relates  to  the  question  of  former 
jeopardy  and  holds  the  action  of  the  trial  court  erroneous  in  set- 
ting aside  the  verdict  of  the  jury  in  the  second  trial,  is  omitted.) 

Tlial  Iml'rus  corpus  will  not  be  allowed  in  lieu  of  appeal  or  writ  of 
_ -error.  ^^  .  :  I'.Minnr.  I  it  re.  57  Fed.  184;  Hartman,  Ex  parte,  44  C'dl.  32; 
Sennott'^  Case,  146  Mass.  489;  Ellis,  In  re,  79  Mich.  322;  State  v.  Mace, 
5  Md.  ^T,j;  Bowen,.£.r  parte,  25  Fla.  214;  Bond,  Ex  parte,  9  S.  Car.  80; 
People  V.  Kelly,  32  Hun  (N.  Y.),  536;  Milburn,  Ex  parte,  59  Wis.  24: 
Pearce,  Ex  parte,  iii  Ala.  99;  Black,  In  re,  52  Kans.  64;  State  v.  Mc- 
Clay,  36  Neb.  282;  Copenhaver,  In  re,  118  Mo.  377;  Perdue,  Ex  parte,  58 
Ark.  295;  lunanuel  v.  State,  36  Miss.  627;  Boland,  Ex  parte,  11  Tex.  App. 
159;  Piatt  V.  Harrison,  6  Iowa.  79;  Fanton,  In  re,  55  Neb.  703;  Common- 
wealth V.  McAleese,  T92  Pa.  St.  410;  Bishop,  In  re,  172  Mass.  35;  People 
V.  Warden,  etc.,  44  Misc.  ( N.  Y.)  149;  Dimmick  v.  Tompkins,  194  U.  S. 
540;   O'Neal,  Ex  parte,    125   Fed.  967;    People  v.   Murphy,  202  111.  493. 


3.     Writ   when   issued   paramount  over  all   other  writs. 

MATSON  V.  SWANSON  et  al. 

1890.     SucKicME  CoruT  oi'  Ii.Lixois.     131   111.  255;  23  N.  K.  5()5. 

Suit  by  Canute  T\.  Matson  against  John  L.  Swanson  and  Charles 
A.  Florence,  upon  a  bond  given  under  the  following  state  of  facts: 
Henry  Rodelson,  being  in  custody  under  a  writ  of  capias  ad  satis- 
faciendum jssncd  in  the  suit  of  Carlson  v.  r)odel&on,  petitioned  for  a 
writ  of  habeas  corpus.  The  juflge  granting  the  writ  ordered  that 
Bodelson  be  released  from  custody,  pending  the  hearing,  ujion  giv- 


^    I  HABEAS    CORPUS,    IN    GENERAL.  699 

in£^  bond  ;  and  such  bond  is  the  one  sued  on.  The  trial  court  gave 
judgment  for  the  plaintiff,  but  the  appellate  court  reversed  the  judg- 
ment, and  the  plaintiff  appeals. 

SciioLFiELD,  J. — The  appellate  court  reversed  the  judgment  of 
the  circuit  court,  as  we  learn  from  its  opinion  (Swanson  v.  Matson, 

....   111.  App )  on  two  grounds :    First,  that  the  judgment  of 

Carlson  v.  Bodelson,  is  not  stated  in  the  declaration;  second,  that 
the  bond  declared  upon  is  void.  However  obnoxious  the  declara- 
tion may  have  been  to  demurrer  on  the  first  of  these  grounds,  we 
are  of  opinion  that  ground  is  not  tenable  as  an  objection  on  mo- 
tion in  arrest.  This  objection  is  not  that  which  is  attempted  to 
be  stated  is  not  a  cause  of  action,  but  that  a  cause  of  action  is 
defectively  stated ;  and  that  cannot  be  urged  on  motion  in  arrest 
of  judgment.  Gould,  PL  §  13,  c.  10,  p.  496;  i  Ch.  PI.  (7th  Amer. 
Ed.)  710;  2  Tidd,  Pr.  (4th  Amer.  Ed.)  918,  919.  Moreover,  if 
the  ruling  of  the  appellate  court  rested  on  that  ground  alone,  the 
record  should  have  been  remanded  to  the  circuit  court,  in  order 
that  the  declaration  might  be  amended,  and  there  be  a  trial  de  novo 
upon  the  amended  declaration.     Section  59,  c.  no.  Rev.  Sts.  1874. 

The  reason  expressed  in  the  opinion  for  which  the  bond  is 
held  to  be  void  is  that  there  is  no  statute  or  common  law  authorit}' 
for  setting  at  liberty, .  temporarily,  on  any  form  of  security,  one 
in  custody  under  vahd  final  process  in  a  civil  cause,  except  under 
the  acts  concerning  insolvents.  The  statute  of  23  Henry  VI,  c. 
9,  recited  in  Bacon's  Abr.  tit.  "Sheriff."  O.  and  Sullivan  v.  Alex- 
ander, 19  Johns.  233  are  cited  in  support  of  this  position.  The 
statute  and  the  case  referred  to  have  reference  exclusively  to  the 
action  of  the  sheriff  when  acting  of  his  own  motion  and  no  ref- 
erence to  cases  wherein  he  is  acting  under  direct  orders 
of  a  court  of  competent  jurisdiction,  as  is  clearly  ap- 
parent from  an  examination  of  them.  But  our  habeas  corpus 
act  makes  it  the  duty  of  circuit  courts,  and  of  the  judges  thereof 
in  vacation,  upon  proper  petition,  to  issue  writs  of  habeas  corpus, 
and  allows  them  to  thereupon  discharge  from  the  custody  of  sher- 
iff's prisoners  held  by  virtue  of  process  from  courts  legally  con- 
stituted, in  seven  enumerated  classes  of  cases.  Section  22,  c.  65, 
Rev.  Stats.  1874.  The  right  to  admit  to  bad,  after  the  return  of  the 
writ  pending  the  hearing  is  conceded  by  counsel  for  appellees  to  be 
within  the  discretion  of  the  court,  but  they  insist  that  such  right 
does  not  exist  until  after  the  return  of  the  writ.  But  if  there  is 
power  to  issue  writs  of  habeas  corpus  in  certain  cases,  and  power 
to  admit  to  bail  pending  hearing  upon  that  writ,  since  in  this  case  the 
petitioner  was  by  his  petition  before  the  court,  there  was  at  least, 
so  far  as  his  rights  v.-ere  concerned  jurisdiction  of  the  subject  mat- 
ter and  of  the  person,  and  therefore,  however  erroneous  the  order 
to  issue  the  writ  of  habeas  corpus  and  admit  to  bail,  it  was  not 


700  WALES  V.  WHITNEY,  SECRETARY  OF  THE  NAVY.  §    I 

void ;  and  the  sheriff  had  no  discretion  but  was  bound  to  obey  the 
writ  when  he  received  it,  and  to  admit  the  petitioner  to  bail,  when 
he  tendered  the  prescribed  bond.  TUc  Anomcnt  the  sheriff  received 
the  zi'rit  of  habeas  corpus,  the  custody  of  th-e  pciitiotier  by  virtue 
of  the  urit  of  capias  ad  satisfaciendum  tcnninatcd,  and  his  custody, 
by  virtue  of  the  zvrit  of  habeas  corpus  began,  because  the  authority 
of  all  other  zvrits  gives  zvay  and  yields  to  the  authority  of  that  zcrii. 
'The  petitioner  was  not  compelled  to  give  bail  but  he  had  the  right 
to  do  so,  under  the  orders  of  the  court ;  and  he  elected  to  avail  him- 
self of  that  right,  and  to  be  thereby  relieved  from  imprisonment 
pending  the  hearing.  When,  therefore,  the  petitioner  gave  the  bail 
he  was  not  held  under  the  writ  of  capias  ad  satisfaciendum,  but  un- 
der the  writ  of  habeas  corpus;  and  so  it  was  the  act  of  the  court 
in  ordering  the  writ  of  liabeas  corpus,  and  not  the  act  of  the  sheriff 
in  admitting  him  to  bail,  that  released  him  from  custody  under 
the  former  writ.  In  re  Kaine,  14  How.  133,  144;  Barth  v.  Clise, 
12  Wall.  400;  Pomeroy  v.  Lappeus,  9  Or.  363;  Hurd,  Hab.  Cor. 
324 ;  9  Amer.  &  Eng.  Enc.  Law,  200,  and  cases  cited.  And  had 
the  prayer  of  the  writ  on  the  hearing  of  the  habeas  corpus  been 
denied,  the  petitioner  would  have  been  simply  remitted  back  to  the 
custody  of  the  sheriff'  under  the  writ  of  capias  ad  satisfaciendum. 
King  V.  Bethel.  5  Mod.  22.  Our  conclusion,  therefore,  is  that  the 
bond  is  not  void. 

Sec   also   Rarth   v.   Ch'se,    12  Wall,    f U.    S.)    401  ;   In    re   Kaine,    14   How. 
(U.   S.)    103;   State  V.  Sparks,  27  Tex.  705. 


4.     W'hat  constitutes  sufficient  detention  or  restraint  to  warrant 
the  issue  of  the  writ. 

WALES   v.   WIITTNEV,   SECRET.VRY  OE  TPTE  NAVY. 
1885.     .SrrKEME  Court  of  the  L'^nited  States.     114  U.  S.  564. 

(J^ET_ri  lOM'.K.  Medical  l)irer((ir  of  the  Xav\-,  was  charged  with 
certain  oriVncc^  and  1»\  an  iinlcr  of  the  Si'crrtary  of  llu'  \'a\\'. 
Xvas  directed  [o  jjresent  himself  for  trial  at  a  future  ilay  Ixfoic  a 
naval  court  martial  and  in  tlie  meantime  to  considrr  himsrlf  iiiKlcr 
arrest  and  ordered  to  confine  himself  to  the  limits  of  the  cit\- 
of  Washington.  The  return  of  the  .Secretary  of  the  Nav\-  to  tlie" 
writ  of  habeas  corpus  denied  that  he  had  custody  of  said  petitrnncT' 
or  that  the  latter  was  imder  detention  or  de])rived  of  his  lil)ert\'.) 
""  "f  .'^o  TniTch  of  the  O'pinion  as  relates  lo  tJie  jtu-isdicticMi  of  the 
naval  court  martial  is  omitted.) 

Mr.  Justice  Miller  delivered  the  o])inion  of  the  court. 


§    I  HABEAS    CORPUS,    IN    GENERAL.  7OI 

*  *  *  Two  questions  have  been  elaborately  argued  before  us, 
namely : 

1.  Does  the  return  of  the  Secretary  of  the  Navy  to  the  .writ 
and  its  accompanying-  exhibits  show  such  restraint  of  the  liberty 
of  the  petitioner  by  that  officer,  as  justifies  the  use  of  the  writ  of 
habeas  cor pus f 

2.  If  there  is  a  restraint,  which,  in  its  character,  demands  the 
issue  of  the  writ,  are  the  charges  for  which  the  petitioner  is  re,- 
quired  to  answer  before  the  naval  court  martial  of  the  class  of 
which  such  a  court  has  jurisdiction? 

The  latter  is  a  question  of  importance,  and  not  free  from  diffi- 
culty, since  its  solution  requires  the  court  to  decide  whether  the 
Surgeon  General  of  thg^Navy,,  as  chief  of  the  bureau  oF  medicine' 
and  surgery  m  the  Department  of  the  Navy,  under  the  immediate 
supervision  of  the  Secretary,  j^Hable  for  any  failure  to  perform 
his  duties,  as  Surgeon  General,  to  be  tried  by  a 'military  court, 
under  the  articles  of  war  governing  the  Navy,  or  has  a  right  for 
such  offences  to  be  tried  alone  by  the  civil  courts,  and  according  to 
tlie  law  for  offences  not  military.  Is  he,  in  that  character,  in  the 
civil  or  military  service  of  the  United  States  ?  The  difficulty  of 
stating  the  question  shows  the  embarrassment  attending  its  deci- 
sion. 

The  other  question,  however,  has  precedence,  both  because  it  is 
the  one  on  which  the  court  of  the  district  decided  the  case,  because, 
if  there  was  no  such  restraint,  whether  legal  or  illegal,  as  to  call 
for  the  use  of  the  writ,  there  is  no  occasion  to  inquire  into  its 
cause. 

It  is  obvious  that  relator  is  under  no  physical  restraint.  He 
walks  the  streets  of  Washington  with  no  one  to  hinder  his  move- 
ments, just  as  he  did  before  the  secretary's  order  was  served 
on  him.  It  is  not  stated  as  a  fact  in  the  record,  but  it  is  a  fair 
inference,  from  all  that  is  found  in  it,  that  as,  Medical  Director, 
he  was  residing  in  Washington  and  performing  there  the  duties  of 
his  office.  ,It  is  beyond  dispute  that  the  Secretary  of  the  Navy  had 
the  right  to  direct  him  to  reside  in  the  city  in  performance  of  these 
'■i^wtieQ,-a»<^l-.  in  order  to  leave  Washington  lawfully,  he  would  have  to 
obtaitl  leiave  of  absence.  He  must,  in  such  case,  remain  here  until 
dtherwise'oVdered  or  permitted.  It  is  not  easy  to  see  how  he  is  under 
any  restraint  of  his  personal  liberty  by  the  order  of  arrest,  which  he 
was  not  under  before.  Nor  can  it  be  believed  that,  if  this  order  had 
made  no  reference  tc  a  trial  on  charges  against  him  before  a  court 
martial,  he  would  have  felt  any  restraint  whatever,  though  it  had  di- 
rected him  to  remain  in  the  city  until  further  orders.  If  the  order 
had  directed  him  so  to  remain,  and  act  as  a  member  of  such  court, 
can  any  one  believe  he  would  have  felt  himself  a  prisoner,  entitled 
to  the  benefit  of  a  writ  of  habeas  corpus? 

On  the  other  hand,  there  is  an  obvious  motive  on  the  part  of 


yo2  WALES  V.  wiirrxEV,  secretary  of  the  navy.  5   1 

the  i^etitioner  for  construing  this  order  as  making  him  a  prisoner 
in  the  ctistody  of  the  Secretary. 

That  motive  is  to  have  himself  brought  before  a  civil  court, 
which  on  inquirv  into  the  cause  of  his  imprisonment,  may  decide 
that  the  offence  with  which  the  Secretary  charges  him  is  not  of  a 
niilitarv  character,  is  not  one  of  which  a  naval  court  martial  can 
entertain  iurisdiction,  and.  releasing  him  from  the  restraint  of  the  or- 
der of  arrest,  it  would  incidentally  release  him  from  the  power 
of  that  court. 

But  neither  the  Supreme  Court  of  the  District  nor  this  court  has 
any  appellate  jurisdiction  over  courts-martial,  nor  over  offences 
which  such  court  has  the  power  to  try.  Neither  of  these  courts 
is  authorized  to  interfere  with  it  in  the  performance  of  its  duty,, 
by  way  of  a  writ  of  prohibition  or  any  order  of  that  nature.  The 
civil  courts  can  relieve  a  person  from  imprisonment  under  order 
of  such  court  only  by  writ  of  habeas  corpus,  and  then  only  when 
it  is  made  apparent  that  it  proceeds  without  jurisdiction.  If  there 
is  no  restraint  there  is  no  right  in  the  civil  court  to  interfere. 
Its  power  then  extends  no  further  than  to  release  the  prisoner.  It 
cannot  remit  a  fine,  or  restore  to  an  office,  or  reverse  the  judgment 
of  the  military  court.  \\'hatever  effect  the  decision  of  the  court 
may  have  on  the  j^roceedings,  orders  or  judgments  of  the  military 
courts,  is  incidental  to  the  order  releasing  the  prisoner.  Of  course, 
if  there  is  no  prisoner  to  release,  if  there  is  no  custody  to  be  dis- 
charged, if  there  is  no  such  restraint  as  requires  relief,  then  the 
civil  court  has  no  power  to  interfere,  with  the  military  court, 
or  other  triljunal  over  which  it  has  by  law  no  appellate  jurisdic- 
tion. 

The  writ  of  Jiabcas  corpus  is  not  a  writ  of  error,  though  in  some 
cases  in  which  the  court  issuing  it  has  ai)pellate  ]iower  over  the  court 
by  wlK)se  order  the  ]:>etitioner  is  held  in  custody,  it  may  be  tised 
with  the  writ  of  certiorari  for  that  j^urpose.  In  such  case,  how- 
ever, as  the  one  before  us,  it  is  not  a  writ  of  error.  Its  purpose  is 
to  enable  the  court  to  in((uire,  first,  if  the  ])(."tilioner  is  restrained 
of  his  liberty.  If  he  is  not,  the  court  can  do  nothing  but  discharge 
the  writ.  If  there  is  such  restraint,  the  court  can  then  niquire  into 
the  cause  of  it,  and  if  the  alleged  cause  be  unlawful  it  must  then 
discharge  the  prisoner. 

There  is  no  very  satisfactory  definitiou  to  be  found  in  the  ad- 
judged cases  of  the  character  of  \\\c  restraint  or  the  im])rison- 
nient  suff'ercd  by  the  ])art\-  api)I\iug  for  the  writ  of  habeas  corpus, 
which  is  necessary  to  sustain  the  writ.  This  can  hardly  be  expected 
from  the  variety  of  restraints  for  which  it  is  used  to  give  relief, 
("onfinemenl  nmlc'-  cixil  ;m(l  criminal  i)rocess  ma\-  be  so  relieved. 
\\'ives  restrainc(|  1)\  husbands,  children  withlu'ld  from  the  proper 
parent  or  guardian,  persons  hcM  under  arliilrar\-  custody  liy  private 
individuals,    ;i-    in    a    madhouse,    as    well    as    those    tmder    military 


§    1  HABEAS   CORPUS,    IN    GENERAL.  70? 

control,  may  all  become  proper  subjects  of  relief  by  the  writ  of 
habeas  corpus.  Obviously,  the  extent  and  character  of  the  restraint 
which  justifies  the  writ  must  vary  according  to  the  nature  of  the 
control  which  is  asserted  over  the  party  in  whose  behalf  the  writ  is 
sought. 

In  the  case  of  a  man  in  the  military  or  naval  service,  where  he  is. 
whether  as  an  ofBcer  or  as  a  private,""alwa,vs  subject  more  or  less 
in  his  movements,  bV^lTie  very  necessTty'  of  militar)'  rule  and  sub-' 
t)rdiTrattDTi^"ta  the  orders  of  liis  superior  officer,  it  should  be  made' 
clear  that  some  unusual  restraint  upon  his  liberty  or  personal  move- 
iTienTs'^rsts  to  justify  the  issue  oT  the  writ;  otherwise  every  order 
o"f  the"superior  officer  directing  the  'moveiiTents  "dt  hts  subordinates, 
which  necessarily  to  some  extent  cuTtails  his  freedom  of  will,  may 
be  held  to' be  a  restraint  of  his  liberty,  and  the  party  so  ordered 
may  seek  relief  from  obe-dience  by  means  of  a  w^rit  oi  habeas  corpus. ' 

Something  more  than  moral  restraint  is  necessarv  to  make  a 
case  f()r  habeas  carpus.  TJicre  uiusf  be  au  actual  coniinoucut  or 
'the  present  uieaus  of  eiiforc'uig  it.  The  class  of  cases  in  which  the'' 
slierifT  or  other  officer,  with  a  writ  in  his  hands  for  the  arrest  of  a 
person  whom  he  is  required  to  take  into  custody,  to  whom  the 
person  to  be  arrested  submits  without  force  being  applied,  comes 
under  this  definition.  The  officer  has  the  authority  to  arrest  and 
the  power  to  enforce  it.  If  the  party  named  in  the  writ  resists 
OT  attempts  to  resist,  the  officer  can  summons  bystanders  to  his 
assistance,  and  may  himself  use  personal  violence.  Here  the  force 
is  imminent  and  the  party  is  in  the  presence  of  it.  It  is  physical 
power  which  controls  him,  though  not  called  into  demonstrative 
action. 

It  is  said  in  argument  that  such  is  the  power  exercised  over 
the  appellant  under  the  order  of  the  Secretary  of  the  Navy.  But 
this  is  we  think,  a  mistake.  If  Dr.  Wales  had  chosen  to  disobey 
this  order,  he  had  nothing  to  do  but  take  the  next  or  any  subse- 
quent train  from  the  city  and  leave  it.  There  was  no  one  at  hand 
to  hinder  him.  And  though  it  is  said  that  a  file  of  marines  or  soine 
proper  officer  coiiTd  have  been  sent  to  arrest  and  bring  him  back, 
this  could  only  have  been  done  by  another  order  of  the  Secretary,  and 
would  be  another  arrest,  and  a  real  imprisonment  under  another  and 
distinct  order.  Here  would  be  a  real  restraint  of  liberty,  quite  dif- 
ferent from  the  first.  Tlie  fear  of  this  latter  proceeding,  which  ma}' 
or  ma\-  n(  it  keep  Dr.  Wales  within  the  limits  of  the  city,  Is  a. 
moral  restraint  which  concerns  but  his  own  convenience,  and  In  re- 
gard to  which  he  exercises  his  own  will. 

The  present  case  bears  a  strong  analogy  to  Dodge's  case  In  6 
Martin,  (La.)  569.  It  appeared  there  that  the  party  who  sued 
out  the  writ  had  been  committed  to  jail  on  execution  for  debt,  and 
having  given  the  usual  bond  by  w^hich  he  and  his  sureties  were 
bound  to  pay  the  debt  if  he  left  the  prison  bounds,  he  was  ad- 


704  WALES  V.  WHITNEY,  SECRETARY  OF  THE  NAVY.  §     I 

mitted  to  the  privilege  of  these  bounds.  The  plaintiff  in  execution 
failing  to  pay  the  fees  necessary  to  the  support  of  the  prisoner, 
the  latter  sued  out  the  writ  of  habeas  corpus. 

The  eminent  jurist,  Chief  Justice  Martin,  said,  on  appeal  to  the 
Supreme  Court:  "It  appears  to  us  that  the  writ  of  habeas  corpus 
was  improperly  resorted  to.  The  appellee  was  under  no  physical 
restraint  and  there  was  no  necessity  to  recur  to  a  court  or  judge 
to  cause  any  moral  restraint  to  cease.  The  sheriff  did  not  retain 
him,  since  he  had  admitted  him  to  the  benefit  of  the  bounds ;  the  doors 
of  the  jail  were  not  closed  on  him,  and  if  he  was  detained  It  was 
not  by  the  sheriff  or  jailer.  If  his  was  a  moral  restraint  it  could 
not  be  an  illegal  one.  The  object  of  the  appellee  was  not  to  ob- 
tain the  removal  of  an  illegal  restraint  from  a  judge,  but  the 
declaration  of  the  court  that  the  plaintiff  in  execution  had  by  their 
neglect  lost  the  right  of  detaining  him.  A  judgment  declaring  such 
neglect,  and  pronouncing  on  the  consequences  of  it,  was  what 
the  appellee  had  in  view."  The  judgment  awarding  the  writ  was 
reversed.    The  analogy  to  the  case  before  us  is  striking. 

A  very  similiar  case  was  passed  upon  by  the  Supreme  Court  of 
Pennsylvania  in  Republica  v.  Arnold,  3  Yeates  263.  A  party  who 
had  been  indicted  for  arson,  and  had  given  bail  for  his  appearance 
to  answer  the  mdictment,  applied,  while  out  under  bail,  to  be  re- 
leased under  the  writ  of  habeas  corpus,  on  the  ground  of  delay  in 
the  prosecution.  The  court  held  that  the  statute  of  Pennsylvania, 
which  was  a  re-enactement  of  the  habeas  corpus  act  of  31  Charles 
II,  Ch.  2,  spoke  of  persons  committed  or  detained,  and  clearly  did 
not  apply  to  persons  out  on  bail.  And  Mr.  Justice  Yates  very  perti- 
nently inquires  "would  not  a  habeas  corpus  directed  to  the  bail  of  a 
supposed  offender  be  perfectly  novel?"  And  Smith,  J.,  said  that 
the  inclination  of  his  mind  was  that  habeas  corpus  could  not  lie 
to  the  bail. 

In  a  note  to  the  cases  of  Rex  v.  Dawes  and  Rex  v.  Kessel,  i  Bur- 
rows 638,  the  same  jirinciple  is  stated,  though  by  whom  the  note  is 
made  docs  not  appear.  Both  these  persons  were  brought  before 
Lord  Mansfield  in  the  King's  Bench,  on  a  rule  against  the  com- 
missioners to  enforce  an  act  of  parliament  to  increase  the  army. 
In  both  cases  the  ground  on  which  the  discharge  was  asked  was 
that  they  were  illegally  pressed  into  the  service.  Lord  Mansfield  dis- 
charged one  because  his  statement  was  found  to  be  correct,  and  re- 
fused the  other  because  his  statement  was  not  true. 

The  note  to  the  report,  apparently  in  explanation  of  the  fact 
that  they  were  nnl  brought  hcioro.  the  court  by  writ  of  habeas 
corpus,  and  that  no  ol)jection  was  taken  to  the  rule  by  the  commis- 
sioner, says:  "Neither  of  these  could  have  brought  a  habeas  corpus; 
neither  of  them  was  in  custody.  Davies  had  deserted  and  absconded, 
and  Kcss"!  li,-ul  been  made  a  corjioral.     No  objection  was  made  by 


§     I  HABEAS    CORPUS,    IN    GENERAL.  705 

the  commissioner  to  the  propriety  of  the  method  adopted."  In  the 
continuation  of  Chief  Baron  Comyn's  Digest,  pubHshed  in  1776, 
and  in  Rose's  edition  of  that  Digest,  these  cases  are  cited  as  showing 
that  the  parties  could  not  bring  habeas  corpus,  because  they  were 
not  in  custody.  Comyn's  Digest,  Continuation,  p.  345  ;  4  Comyn's 
Digest,  (4th  ed.  8vo.  London,  1800)  313;  Habeas  corpus,  B. 

While  the  acts  of  congress  concerning  this  writ  are  not  decisive, 
perhaps,  as  to  what  is  a  restraint  of  hberty,  they  are  evidently 
framed  in  their  provisions  for  proceedings  in  such  cases  on  the 
idea  of  the  existence  of  some  actual  restraint.  Rev.  Stats.  §  754  says 
the  application  for  the  writ  must  set  forth  "in  whose  custody  he 
(the  petitioner)  is  detained,  and  by  virtue  of  what  claim  or  authority, 
if  known ;"  §  755,  that  "the  writ  must  be  directed  to  the  person 
in  whose  custody  the  party  is ;"  §  757  that  this  person  shall  certify 
to  the  court  of  justice  before  whom  the  writ  is  returnable  the 
true  cause  of  the  detention ;  and  by  §  758  he  is  required  "at  the  same 
time  to  bring  the  body  of  the  party  before  the  judge  who  granted 
the  writ." 

All  these  pi'ovisions  contemplate  a  proceeding  against  some  j3erson 
wTToTa^s' THe   immediate   custod}'   of  the   party   detained,   with   the 
^wer    to    produce    the    bod}-    of    such    party   before    tlie^'coiurt"  or 
judgei_.th.at_he  may  be  liberated   if  no  sufficient  reason  be  shown" 
to  the  contrary. 

In  a  case  of  a  person  who  is  going  at  large,  with  no  one  con- 
trolling tir  watching  him,  his  bQ(^  cannot  be  produced  by  the  person' 
To   ^\■l^()n1    the   writ   is   directe4_^   unless   b}-    consent    of   the  "alleged 
"prisoner,  or  by  his  capture  and  forcible  traduction  into  the  presence 
of  the  court. 

The  record  in  the  present  case  shows  that  no  such  thing  was 
done.  The  Secretary  denies  that  Wales  is  in  his  custody,  and  he 
does  not  produce  his  body ;  but  Wales  on  the  direction  of  the  Secre- 
tary, appears  without  any  compulsion,  and  reports  himself  to  the 
court  and  to  Justice  Cox  as  he  did  to  the  court  martial. 

We  concur  with  the  Supreme  Court  of  the  District  in  the  opinion 
that  the  record  does  not  present  such  a  case  of  restraint  of  personal 
liberty  as  to  call  for  a  discharge  by  a  writ  of  habeas  corpus. 

In  thus  deciding  we  are  not  leaving  the  appellant  without  remedy 
if  his  counsel  are  right  in  believing  the  court  martial  has  no  jurisdic- 
tion of  the  offence  with  which  he  is  charged.  He  can  make  that  ob- 
jection to  that  court  before  trial.  He  can  make  it  before  judgment 
when  all  the  facts  are  before  that  court.  He  can  make  it  before  the 
reviewing  tribunal. 

If  that  court  finds  him  guilt}-,  and  imposes  imprisonment  as  part  of 
a  sentence,  he  can  then  have  a  writ  to  relieve  him  of  that  imprison- 
ment. If  he  should  be  deprived  of  office,  he  can  sue  for  his  pay 
and    have    the    question    of    the    jurisdiction    of   the    court    which 


7o6  EX  PARTE  SNODGRASS.  §    I 

made  such  order  inquired  into  in  that  suit.  If  his  pay  is  stopped, 
in  whole  or  in  part,  he  can  do  the  same  thing.  In  all  these  modes 
he  can  have  relief  if  the  court  is  without  jurisdiction,  and  the 
inquiry  into  that  jurisdiction  will  be  more  satisfactory  after.  tHe" 
court  shall  have  decided  on  the  nature  of  the  offence  for  which  it 
punishes  him  than  it  can  before.  And  this  mode  of  relief  is  more 
m  accord  with  the  orderly  administration  of  justice  and  the  delicate 
relations  of  the  two  classes  of  courts,  civil  and  military,  than  the 
assumption  in  advance,  by  the  one  court  that  the  other  will  exercise 
ajunsdiction  which  does  not  belong^iojul:. 

The  judgment  of  the  Supreme  Court  of  the  District  of  Co- 
lumbia is 

Affirmed. 


Ex  PARTE  SNODGRASS. 

1901.     Court  of  Criminal  Appeals  of  Texas.     43  Tex.     Grim. 
Rep-  359;  65   S.  W.    1061. 

Brooks,  J. — Upon  application  of  the  relator  for  the  writ  of 
habeas  corpus,  the  same  was  granted  by  presiding-judge  Davidson, 
and  made  returnable  before  the  court  for  hearing  on  November  13, 
1901,  at  which  time  the  assistant-attorney-general  filed  t'  following 
motion  to  dismiss  the  application,  towit:  "Now  comes  the  state  by 
the  assistant-attorney-general,  and  would  show  the  court  that  tlie 
applicant  herein  was  ordered  by  the  district  judge  committed  to  jaiT^ 
;^mding  the  payment  of  a  fine  of  $50  assessed  against  him  for  con- 
tempt of  court,  and  that  said  ripplicant  was  never  by  the  sheriff 
committed  to  jail,  so  the  state  is  credibly  informed  and  believes, 
but^Was  by  the  sheriff  admitted  on  parole,  and  permitted  to  be  en- 
larged, upon  his  promise  to  protect  him  in  the  premises ;  and  said 
applicant  was  beyond  the  custody  of  the  sheriff,  and  not  within  the 
jail  of  said  Coleman  county,  before  this  court  admitted  him  upon 
bail,  as  shown  by  the  record  herein.  Wherefore  the  state  would 
show  the  court  that,  by  reason  of  the  enlargement  of  the  applicant, 
this  court  is  without  jurisdiction  to  hear  the  application,  and  the 
sTafe  movenhe  court  that  this  application  be  dismissed."  The 
judgment  of  the  court  finding  the  applicant  guilty  of  contempt 
was  entered  on  September  it,  1901,  and  the  commitment  was  issued 
on  the  26th  of  Septcmlx^r.  The  writ  of  habeas  corpus  was  granted 
by  this  court  on  October  /ih,  applicant  being  admitted  to  bail  in  the 
sum  of  $200  pending  the  disposition  thereof.  Relator,  Frank  L. 
Snodgrass,  being  sworn,  states  substantially  that,  some  days  after 
the  court  fined  him,  judgment  was  entered  by  the  court,  and  upon 
said  judgment  commitment  was  issued  :  that  the  sheriff  met  the  re- 


§     I  HABEAS    CORPUS,    IX    GEXERAL.  yoj 

lator  upon  the  streets,  and  arrested  him  on  said  commitment.  There- 
upon jhe  relator  requested  the  sheriff  to  appoint  some  one  or  go 
himself  ^ith"  relator  "t(7~relator's  house,  as  his  child  \vas"yery 
stl!k~WTth  diphtheria,  and  relator  could  not  with  safety  ask  the 
neighbor  ladies  to  wait  upon  his  child  with  a  contagious  disease. 
Relator's  wife  was  dead,  and  there  was  no  one  to  properly  care  for 
th~e"  child  besides  himsetf.  Tlie  officer  informed  the  relator^h^ 
WouT3"''nor  go  himself,  nor  ap]')omt  any~one'r"but  relator  could  go 
home,  if  he  would  promise  that  under  no  circumstances  or  condi- 
tibns  woind  he  leave  the  bedside  of  his  child,  except  to  go  to  rela- 
tor's office^tT3~t)aclc.  Relator  promised  upon  honor  to  comply  with 
the  conHitiohs  imposed  upon  him,  and  he  did.  While  this  character 
of  enlargementj  if  it  be  termed  such,,  was  in  existence,  reTa^br  applied 
"TTrttTis~court  for  the  writ  of  habeas  corpus,  which  was  granted,  and 
he  was  released  on  bond.  It  will  be  noticed  this  is  an  original 
application  for  the  writ  of  habeas  corpus,  and  not  an  appeal  from 
an  order  refusing  bail ;  hence  we  apprehend  the  rules  covering 
the  same  are  somewhat  different  in  reference  to  the  confinement 
or  imprisonment. 

Article  170,  Code  Cr.  Proc.  provides: 

"The  same  power  may  be  exercised  by  th€  officer  executing 
the  warrant  (and  in  like  manner)  in  cases  arising  under  the  fore- 
going articles  as  is  exercised  in  the  execution  of  warrants  of  arrest 
according  to  the  provisions  of  the  code. 

"Art.  171.  The  words  "confined,"  "imprisoned,"  "in  custody," 
"confinement,"  "imprisonment,"  refer  not  only  to  the  actual  corporeal 
and  forcible  detention  of  a  person,  but  likewise  to  any  and  all 
coercive  measures  by  threats,  menaces  or  the  fear  of  injury  where- 
by one  person  exercises  a  control  over  the  person  of  another  and 
detains  him  within  certain  limits." 

"Art.  172.  By  "restraint"  is  meant  the  kind  of  control  which 
one  person  exercises  over  another,  not  to  confine  within  certain 
limits,  but  to  subject  him  to  the  general  authority  and  power 
of  the  person  claiming  such  right." 

"Art.  173.  The  writ  of  habeas  corpus  is  intended  to  be  applicable 
to  all  such  cases  of  confinement  and  restraint,  where  there  is  no  law- 
ful right  in  the  person  exercising  the  power,  or  where,  though  the 
power  in  fact  exists,  it  is  exercised  in  a  manner  or  degree  not 
sanctioned  by  law." 

Article  154,  Code  Cr.  Proc.  requires  that  "every  provision  re- 
lating to  the  writ  of  habeas  corpus  shall  be  most  favorably  con- 
strued in  order  to  give  effect  to  the  remedy  and  protect  the  rights 
of  the  person  seeking  relief  under  it."  Articles  151.  152,  164,  166, 
T'^7,  Id.,  contemplate  that  a  person  is  entitled  to  the  writ  not  only 
in  e.i^e  of  actual  custody,  but  also  in  case  of  any  illegal  restraint. 
Article  172  states  that  by  "restraint"  is  meant  the  kind  of  control 


708  GOSS   V.    CUTLER.  §    I 

which  one  person  exercises  over  another,  not  to  confine  him  within 
certain  limits,  but  to  subject  him  to  the  general  authority  and  power 
^Jf^'the  person  claiming  such  right.  We  thinfs;  this'article  alone 
is  decisive  of  the  question,  and  that  the  state's  motion  should  not 
prevail.  We  deem  it  unnecessary  to  enter  into  a  long  discussion 
of  these  articles,  but  suffice  it  to  say  tJiot  any  character  or  kind  of  re- 
straint that  precludes  an  absolute  and  perfect  freeduni  of  action  on 
the  part  of  relator  authorities  such  relator  to  make  application  to 
Jhis  court  for  release  from  such  restraint.  It  certainly  cannot  be 
insisted  that,  if  relator  is  illegally  arrested  (if  he  is  illegally  ar- 
rested) he  must  be  placed  in  jail,  and  thereby  be  subjected  to  an  ad- 
ditional outrage,  before  he  can  apply  to  this  court  for  the  writ  of 
habeas  corpus.  The  motion  of  the  state  to  dismiss  the  application 
is  overruled.     *     *     * 

(So  inuch  of  the  opinion  as  relates  to  the  validity  of  the  com- 
mitment is  omitted.) 

In  United  States  v.  Jung  Ah  Lung,  124  U.  S.  621,  the  erroneous  refusal 
to  permit  a  Chinese  passenger  to  land,  was  held  to  be  a  detention,  and 
restraint    within    the    meaning    of    the    United    States    Habeas    Corpus    Act. 

And  see  also  In  re  Callicot,  8  Blatchf.  (U.  S.)  8g ;  Commonwealth  v. 
Doran,  15  Pa.  Co.  Rep.  385;  Commonwealth  v.  Ridgeway,  2  Ashm.  (Pa.) 
247;  In  re  Farrell,  22  Colo.  461;  Foster,  Ex  parte,  44  Tex.  Cr.  App.  423; 
Ex  parte  INIears,  3  Utah,  50;  Lampert,  In  re,  21  Hun  (N.  Y.),  154;  Essel- 
born,  In  re,  20  Blatchf.    (U.   S.)    i;   Williamson  v.  Lewis,  39  Pa.   St.  9. 

In  Commonwealth  v.  Ridgeway,  2  Ashm.  247,  the  rule  was  declared 
that  "whenever  a  person  is  deprived  of  the  privilege  of  going  when  and 
where  he  pleases,  he  is  restrained  of  his  liberty,  and  has  a  right  to  in- 
quire if  that  restraint  be  illegal  and  wrongful ;  and  that  whether  it  be 
exercised   by  a   jailor,   constable^   or   private   individual." 


TERRITORY  OF   KANSAS   ex  rel.   GOSS  v.   CUTLER. 
i860.     Supreme  Court  of  Kans.\s.     i    Kan.   (2d.  Ed.)   565. 

The  opinion  of  the  court  was  delivered  by 

Wn.FJ.\.vis.  J. — On  the  23d  day  of  June,  t86o,  iUfjcd ^.F.,  Goss 
filed  liis  petition  in  the  supreme  court  of  the  territory  (the  court 
being  then  in  session  in  the  city  of  Leavenworth)  ])raying  for  a 
writ  of  habeas  corpus.  The  petition  sets  forth  the  following  facts : 
"That  at  the-  County  of  Leavenworth,  Kansas  Territory,  he  was 
illegaTlv,  unlawfully  and  unjustly  detained  and  restrainecr of_ his 
liberty^by  AfartTrTT^^.  Cutler,  a  constable  of  the  said"  county!  That 
he  was_thiis  restrained  of  his  liberty  under  color  of  authority"  derived 
from  a  warrant  of  commitment,  for  the  imprisonmetit  of  petitioner, 
derived  from  one  W.  IT.  Fox,  a  justice  of  the  peace  in  and  for 
ihe  town  of  Delaware,  in  said  county.  That  the  facts  concerning 
.<;aid  arrest  ,'ut1   ddcnlion   ww  as    follows:   xxz:     On   the  2Qth  dav 


§   I  "habeas  corpus/'  709 

of  May,  i860,  one  H.  D.  Smith,  made  a  complaint  in  writing  and 
under  oath^  before  one  Bucks,  a  justice  of  the  peace  of  said  cc^unty," 
charging  petitioner  with  the  crime  of  perjury,  upon  which  a  wa'r- 
rant  was  issued.  That  on  the  20th  day  of  June,  i860,  he  was'ar- 
rested  and  taken  before  W.  H.  Fox,  a  justice  of  the  peace,  by 
whom,  ajter  examination  had,  he  was,  on  the  23d  day  of  the  same 
month,  committed  to  the  jail  of  the  said  county,  iir default  of  baTl 
j^n~tKF''suiTi  of  $800.  That  by  virtue  of  the  commitment  issued  By 
sai^H^T^Listice,  he  was  then  unlawfully  restrained  of  his  liberty  by 
said  constable.  That  such  j:ommitmient  was  issued  under  circum- 
stances  not  alloAA^ed  by  law,  there  being  before  said  justice  no  evi- 
dence, upon  the  examination  and  hearing,  that  any  crime  had  been 
coifimitted.  Whereupon  the  writ  of  habeas  corpus  was  issued  by  the 
court,  and  served  on  the  said  constable.  Cutler,  to  which  the  following 
return  was  made  by  him,  towit :  That  he  had  not  the  body  of  the 
said  Goss  in  his  custody,  or  under  his  power  or  restraint. 
That,  before  tlie  service  of  the  writ  of  habeas  corpus  was  had  upon 
him,  he  had  the  body  of  the  said  Goss  in  his  custody  and  under 
his  restraint,  by  the  authority  of  a  writ  of  commitment,  to  him 
directed,  as  the  constable  of  said  county  of  Leavenworth,  which 
writ  was  issued  by  W.  H.  Fox,  a  justice  of  the  peace  of  said  county  ; 
bv  which  writ  of  commitment  he  was  commanded  to  commit  the  said 
Goss  to  the  jail  of  said  county,  until  he  give  a  good  and  satisfactory 
bail  in  the  sum  of  eight  hundred  dollars,  or  be  otherwise  discharged 
according  to  law.  That  while  in  his  custody  and  under  his  re- 
straint, by  virtue  of  the  said  writ  of  commitment  f  which  is  attached 
hereto  and  shown  to  this  court),  by  virtue  of  the  power  vested  in 
him  by  law,  he,  the  said  Cutler,  did  a£prove  of  and  accept  a 
h'dU  Imml  as  offered  1\\'  tlu'  said  'ioss,  (which  said  bond  fs  hereto 
attached  and  shown  to  the  couri )  and  did^therevipon  on  the  23d  day 
of  June,  i860,  permit  the  said  Goss  to  go  atJibfirty.    Andjdefendant 

further   states   that^    at   the    time    of   tlie sexvice  of   said    writ   of, 

hdbeils^'cdrfuT^^e  had  no  control  over  the  body'  of  the  said  Goss 
whatever,  and  he  has  not  now\  ^A,  such  being  the  case,  he  cannot 
bring  the  bodv  of  said  Goss  before  this  court.  Dated  Jime  26,  i860.''' 
Therciii>'iii  ;1k  case  having  been  called  for  hearing,  O.  B.  Holman, 
Esq.,  apjjcarcd  on  behalf  of  the  accused,  and  Thomas  F.  Fenlon, 
Prosecuting-attorney  for  the  county  of  Leavenworth,  appeared 
for  the  territory ;  whereupon  the  attorney  for  Goss  demurred  to  the 
return,  of  the  constable,  as  insufficient  in  law  to  prevent  the  due 
effect  of  a  writ  as  issued  upon  the  petition  of  the  relator.  Among 
the  papers  of  the  case,  making  a  part  of  the  return  of  the  constable, 
was  the  bail  bond  given  by  the  prisoner  Goss.  with  security,  to  the 
constable,  duly  approved  and  conditioned  for  the  appearance  of 
the  prisoner  at  the  next  district  court  of  Leavenworth  county, 
on  the  2nd  dav  of  August,  i860,  to  answer  to  anv  indictment  which 


yiO  GOSS   V.    CUTLER.  §     1 

may  be  found  against  him  for  perjury,  etc.,  bearing-  date  June  23. 
i860.  The  attorney  for  Goss  insisted  upon  a  hearing  of  this 
case  by  the  court  on  the  merits,  as  presented  by  the  return  of  the  jus- 
tice, proceeding-s  and  the  evidence,  and  also  contended  that,  in  the 
original  information  and  the  commitment  issued  by  the  justice, 
there  was  no  crime  known  to  the  law  properly  charged.  The  at- 
torney for  the  prosecution  contended  that  the  return  of  the  officer 
to  the  writ  of  habeas  corpus  was  conclusive,  showing  that,  at  the 
time  of  the  issuance  of  the  writ  of  habeas  corpus  the  prisoner  was 
not  in  his  custody,  or  in  any  way  restrained  of  his  liberty  by  him, 
having  by  his  own  act,  in  compliance  with  the  law,  released  himself 
by  giving  bond,  with  security  for  his  appearance  at  the  next  district 
court,  to  answer  to  the  charge  upon  which  he  had  been  arrested. 
That  he  was  not  in  court  so  as  to  be  forthcoming  for  the  purposes 
of  this  hearing  as  required  by  law,  and  therefore  this  court  could 
take  no  legal  cognizance  of  the  matter.  This  being  substantially  the 
state  of  the  case,  as  presented  here,  we  will  proceed  to  announce 
the  opinion  of  the  court  upon  it.     *     *     * 

(The  court  here  proceeded  to  quote  the  terms  of  the  territorial 
act  regulating  proceedings  on  writs  of  habeas  corpus.) 

liere  we  have,  in  specific  terms,  the  statutory  enactment  in  rela- 
tion to  the  return  which  is  rcr|lnred H'T  the  person  or  officer  to  whom 
the  writ  is  directed,  fii  tlir  iiiosl  uninislakal)lc  terms,  thnuighout, 
it  contemplates  a  confinement,  custody  and  illegal  restraint  oflTfe 
persoiial'ifbert}-  of  the  pers5n  applying'ior  the  benefit  of  the  w  rit-^^ 
a  custody  of  the  body.  That  this  is  the  true  intent  and  meal'F" 
'Ing  of  the  statute  is  manifest  upon  an  examination  of  sections  twen- 
ty-one, twenty-two,  twenty-five,  thirty-one,  thirty-five,  thirty-nine, 
forty-three  and  forty-eight  of  the  act,  all  of  which  clearly  con- 
template a  custody  of  the  body,  and  a  restraint  of  the  liberty  of  the 
person  of  the  petitioner,  and  the  actual  bringing  of  his  body  before 
the  court  or  officer  of  the  law  by  whom  the  writ  was  issued.  This 
is  the  purpose  of  the  law,  and  the  object  sought  to  be  attained  by 
the  writ,  that  the  person  who  is  restrained  of  his  liberty  may  be  in, 
and  (until  the  matter  is  judicially  inquired  into  and  disposed  of) 
subject  directly  to,  the  powers  of  the  judge  or  court,  upon  the  deci- 
sion of  the  court.  If  the  imprisonment  or  restraint  of  his  liberty 
be  illegal,  he  may  be,  by  the  judge  or  court,  before  whom  he  has 
l)cen  brought,  at  once  discharged  in  his  or  its  presence,  by  the 
proper  legal  order:  or,  if  to  be  let  to  bail,  or  remanded  to  prison, 
or  kept  in  the  absolute  custody  of  the  laws,  the  proper  order  there- 
fore may  be  made  in  his  presence.  The  law  makes  it  the  duty  of  the 
court  or  the  judge,  by  operation  ofTTTe  wrirTrT^see"that^TF~p3Tty 
rf'«;f  rained  of  his  TilK-riy  is  actually  brought  1>efofe  KiiTTroT'it,"1rrpeP~' 
that  he  iiiav  be  in  the  direct  power  of  the  law  oFTHe^o^ 
11    were    not    the    absolute    recpurement   of   tlie   law    the    writ 


§    I  HABkAS    CORPUS,    IN    GENERAL.  7II 

would  often  be  insufificient.  In  this  case  the  response  of  the  consta- 
ble, by  whom,  it  is  alleged  in  the  petition,  the  petitioner  was  ille- 
gally restrained  of  his  liberty,  is  made  in  due  compliance  with  the 
requirements  oi  law\  It  shows  that  at  the  time  of  the  service  of  the 
writ  of  habeas  corpus,  the  petitioner  was  in  the  custody  or  power  of 
the  respondent,  nor  was  he  in  any  manner  restrained  of  his  liberty 
by  him  whatever,  and  that,  previous  to  such  service,  the  petitioner 
had  voluntarily  given  bail  to  appear  and  answer  to  any  indictment 
which  might  be  found  against  him,  at  the  next  term  of  the  district 
court,  and  thereupon  he  was  released  from  custody,  and  all  re- 
straint of  his  liberty  by  respondent.  Accompanying  this  return 
of  the  officer  is  the  above  mentioned  bail  bond,  duly  executed  and 
approved.  Here  is  also  a  state  of  the  case  which  is  clearly  not  within 
the  operation  of  the  provisions  of  the  habeas  corpus  act,  to  which 
it  does  not  apply.  The  rotraint  i)f  liberty  w'hich,  in  contemplation 
of  law,  is  legally  made  the  subject  of  inquiry  by  the  writ  of  habeas 
^or pus  ~  is  more  than  a  mere  moral  restraint.  It  is  any  duress  or 
restraint  of  the  person,  whereby  he  is  prevented  from  exercising 
the  liberty  of  going  when  and  where  he  pleases,  whether  it  be  by  an 
officer  of  the  law  or  a  private  individual.  (Commonwealth  v.  Ridg- 
way,  2  Ashmead  247;  Hurd  on  Habeas  Corpus,  210;  Dodge's  case, 
6  Mart.  Lou.  Rep.  569.)  It  always  (so  far  as  we  have  known) 
has  been  held,  by  the  courts  and  elementary  writers  on  the  subject, 
that  persons  discharged  on  bail  zvill  not  be  considered  as  restrained 
"oTjJieir  liberfy  so  as  to  be  entitled  to  the  zvrit  of  habeas  corpus 
direH7d'ld''t7ieirTdiL'~'(YT^ouviQv'^  Law  Dictionary,  574;  3  Yeates' 
Rep.  263 ;  I  Sei-g.  &  R.  356.)  In  this  case  the  return  of  the  respon- 
dent, unless  successfully  traversed  in  fact,  is  conclusive,  showing, 
in  the  first  place,  that,  at  the  time  of  the  service,  of  the  writ  of 
habeas  corpus,  the  petitioner  was  not  in  his  custody,  or  restrained 
of  his  liberty  by  him,  and  also  showing  that,  by  his  own  voluntary 
act,  the  petitioner  had  answered  the  demands  of  the  commitment 
by  virtue  of  which  he  had  been  in  custody,  by  giving  a  bail  bond, 
as  required  by  law,  to  appear  and  answer  to  any  indictment,  which 
might  be  found  against  him  at  the  next  term  of  the  district  court' 
of  the  proper  county. 

It  is  ordered  by  this  court  that  the  writ  of  habeas  corpus,  as 
issued  in  this  case,  be  dismissed,  together  with  all  proceedings' 
heretofore  had  thereon,  and  that  the  costs  of  this  proceeding  be  paici 
by- the  petitioner.  '     - 

Tn  accord. — Spring  v.  Dahlman,  34  Neb.  692 ;  Grice,  In  re,  79  Fed.  627 ; 
Branch,  Ex  parte,  36  Tex.  Cr.  App.  384;  Ah  Kee,  Ex  parte,  22  Nev.  374; 
In  re  Walker,  .q3  Miss.  366:  Lo2;an  v.  State,  3  Brev.  (S.  Car.)  415;  Com- 
monwealth V.  Gill,  ID  Pa.  Co.  Ct.  R.  71;  Lampert,  Ex  parte,  21  Hun  (N. 
Y.),  154- 


712  EX    PARTE    RANDOLPH,  §    I 

5.     Detention  on  civil  process. 

Ex  PARTE  RANDOLPH. 

1833.     United   States   Circuit   Court,   Dist.   of  Virginia. 
2  Brock,  447;  20  Fed.,  Cas.  242,  No.   11,558. 

*  *  *  Robert  B.  Randolph,  late  acting  purser  of  the  U.  S. 
frigate  Constitution,  was  brought  into  the  court  on  a  writ  of  Jwbeas 
corpuSj  and  a  motion  is  now  made  for  his  discharge  from"lm"prison- 
nient  The  writ  wasjdirected  to  the  marshal  of  this  distri'ct7~ni  whose 
"custody  hejs.  Xiie~return  of  the  ofificer,  shows  the  cause  of  "cap-"' 
tfon  and  detervtiorij^  tp  be_a_  warrant  issued  by  the  accountmg  officers 
of  the  treasury,  under  authority  of  the  act  passed  the  fifteenth  day 
"ot  ]\Iay,  1820';"  which,  after  reciting  that  Robert  B.  Randolph,  late 
acting  purser  of  the  United  STates"~frigate  Const  it  ufi6n7~st3Ttds  in- 
debted to  the  United  States  in  the  sum  of  $25,097.83,  agreeahl^Jo^tlle^ 
s'ett!em'ent_o?_His  account,  made  by  the  proper  accounting  officers 
orTThe  treasury,  and  has  failed  to  pay  it  over  according  to  "the 
act  for  the  better  organization  of  the  treasury  department,"  com- 
mands the  said  marshaHo  make  the  said  sum  of  $25,097.83  out  of  the 
goods  aiTd  chattels  of  the  said  Randolph ;  and  in  defairlttHereoT^To 
commit  his  boch"J:o  .prison,-  there  to  remain  until  discharged  by  due 
coufse' of  law.  If  these  proceedings  fail  to  produce  the  said  sum  of 
money,  the  warrant  is  to  be  satisfied  out  of  his  lands  and  tenemients. 
The  return  shows  that  the  body  of  the  said  Robert  B.  Randolph  was 
Gommitted  to  prison,  and  is  detained  by  virtue  of  this  process.  *  *  * 

(So  much  of  the  opinion  as  relates  to  the  validity  of  the  war- 
rant issued  by  the  Solicitor  of  the  Treasury  is  omitted.) 

Barhour,  District  Judge.  *  *  *  I  have  felt  some  difficulty 
upon  the  question,  whether  a  habeas  corpus  could  be  sustained  in 
favor  of  a  party  imprisoned  under  civil  process,  as  in 'This  case. 
The  difficulty  arose  from  the  doubt  expressed  by  two  higli  authori- 
ties, although  decided  by  neither.  In  Ex  parte  Wilson,  6  Cranch, 
(10  U.  S.  52),  the  party  was  arrested  by  a  capias  ad  satisfocicndnin 
and  was  in  prison  bounds.  An  application  was  made  for  a  habeas 
corpus  on  the  ground,  that  the  creditor  had  refused  to  pay  his 
daily  allowance.  The  court  said  that  it  was  not  satisfied  that  a 
habeas  corpus  was  the  proper  remedy,  in  a  case  of  arrest,  under 
civil  process.  In  Cable  v.  Cooper,  15  Johns.  152,  the  supreme  court 
of  New  York,  except  one  of  the  judges,  express  the  same  doubt, 
and  refer  to  the  case  in  Craiu-li.  The  judge,  in  delivering  the  opin- 
ion of  the  court,  says,  if  it  were  necessary  to  decide  the  point, 
he  should   say,  it  would   not  lie  in   such  a  case. 

T  supix)se  that,  ]>robably,  tbc  doubt  originated  from  this  fact. 
TIk-    rflcbrntcd    habeas    corpus    act    of    31    Charles    II,    which,    as 


8    I  HABEAS    CORPUS,    IN    GENERAL.  713 

judge  Kent,  in  his  commentaries,  says,  is  the  basis  of  ahnost  all 
the  American  statutes  on  the  subject,  and  which,  in  practice,  by 
reason  of  its  valuable  provisions  for  insuring  speedy  action,  has 
almost  superseded  the  common  law,  has  been  held  in  England  to 
be  confined  to  criminal  cases.  All  the  judges  of  England  in  answer 
to  a  question  propounded  to  them  by  the  house  of  lords,  answered, 
— -That  it  did  not  extend  to  any  case  of  imprisonment,  detainer,  or 
re'straint  whatsoever,  except  cases  of  commitment  for  criminal,  or 
supposed  criminal  matters.  3  Bac.  Abr.  438,  note.  '  At  the  .same 
time,  this  question,  in  substance,  was  put  to  them :  whether  if  a 
person  imprisoned  apply  for  a  habeas  corpus  ad  subjiciendum,  at 
common  law,  and  make  affidavit  that  he  does  not  believe  that 
\-<is  imprisonment  is  by  virtue  of  a  commitment,  for  any  criminal 
or  supposed  criminal  matter,  would  such  affidavit  as  the  law  then 
stood,  be  probable  cause  for  awarding  the  writ?  The  question  be- 
ing objected  to  was  not  put.  This  would  seem  to  leave  the  point 
in  an  unsettled  state.  Yet,  there  are  two  books  of  authority,  which 
T  think,  sustain  the  doctrine  that  the  writ  is  not  confined  to  criminal 
matters.  Blackstone  in  Volume  3,  p.  132,  says,  that  the  great  and 
efficacious  writ  in  all  manner  of  illegal  confinement  is  the  habeas 
corpus  ad  subjiciendum.  Bacon  (Volume  3,  p.  421)  says:  When- 
ever a  person  is  restrained  of  his  liberty,  by  being  confined  in  a 
common  jail,  or  by  a  private  person,  whether  it  be  for  a  criminal  or 
cifil  cause,  he  may  be  regularly,  by  habeas  corpus,  have  his  body 
and  cause,  removed  to  some  superior  jurisdiction,  etc. 

Now,  the  act  of  congress,  authorizes  us  to  issue  the  writ,  "for  the 
purpose  of  inquiring  into  the  cause  of  commitment."  Upon  this, 
the  supreme  court  in  Ex  parte  Watkins,  3  Pet.  (28  U.  S.)  20T, 
remarks:  "that  no  law  of  the  United  States  prescribes  the  cases 
in  which  this  great  writ  shall  be  issued,  nor  the  power  of  the  court 
over  the  party  brought  up  by  it.  The  term  is  used  in  the  Consti- 
tution as  one  which  is  well  understood.  This  general  reference  to  a 
iwwer  which  we  are  required  to  exercise,  without  any  precise  defi- 
nition of  that  power,  imposes  on  us  the  necessity  of  making  some 
inquiry  into  its  use,  according  to  that  law,  which  is,  in  a  considerable 
degree,  incorporated  in  our  own."  If,  in  making  this  inquiry,  we 
were  to  consult  the  British  statute  alone,  we  should  find  it  as  al- 
ready stated,  confined  in  its  construction,  to  criminal  cases.  But 
if  we  look  to  the  common  law  authorities  which  I  have  mentioned, 
it  seems  to  me,  that  we  are  justified  in  applying  it  to  a  civil  process. 
Indeed  we  know  it  to  have  been  repeatedly  applied  in  England 
to  the  domestic  relations  of  life,  such  as  the  liberation  of  a  wife 
from  the  unjust  restraint  of  a  husband,  and  a  child  from  that  of 
parent.  And  certainly,  we  are  well  warranted  in  making  this  ref- 
erence to  the  comon  law  :  because,  although  it  is  admitted  bv  all.  that 
it  is  not  a  source  of  jurisdiction,  yet  it  is  habitually,  rightfully,  nay 


714  WALKER,    ATTORXEV-GEXERAL    V.     DODSOX'^,     JUDGE.  §    T 

necessarily  referred  to  for  the  definition  and  application  of  terms; 
indeed,  there  are  many  terms  in  the  constitution,  which  could  not 
otherwise  be  understood.  Nor  do  even  the  doubts  expressed  in  the 
cases  from  Cranch  and  Johnson  apply  to  this ;  for  both  of  those  were 
on  process  of  civil  execution  ;  issuing  from  a  court  of  record  and  gen- 
eral jurisdiction ;  whereas,  this  is  a  case  of  process,  issuing  from  a 
special  jurisdiction  which  can  neither  be  supervised  by  certiorari,  nor 
re-examined  by  writ  of  error.  TriJ;bi-s- Qase,  then.jf  a  habeas  corpus 
wou]d  not  lie,  there  would  be  no  relief  from  impriso^nment.  witrtDnt 
lawful,  authority.  In  cases  of  execution  from  courts  of  record,  the 
courts  themselves  can  quash  it,  if  it  do  not  conform  to  the  judgment ; 
if  it  do,  and  that  judgment  be  erroneous,  it  can  be  corrected  in  a 
court  of  appellate  jurisdiction.  Upon  the  whole  view  of  the  sub- 
ject, I  am  of  the  opinion  that  the  party  sTiouTcnje'^scliargt^d.    "*■ 

(Opinion  of  Marshall,  Circuit  Justice,  omitted.) 

In  accord. — Cazin,  In  re,  56  Vt.  297;  Commonwealth  v.  Moore,  36  Mass. 
339;  Hyde  v.  Jenkins,  6  La.  435;  People  v.  Willett,  15  How.  Pr.  (N.  Y.) 
210;   Hecker  v.  Jarrett,  3  Bin.    (Pa.)   404;   State  v.  Ward,  8  N.  J.  L.   120; 


56  Vt.   495- 


6.     Discretion    in    granting   the    writ    and    necessity    of   showing 
probable  cause. 

STATE  EX  REL.  WALKER,  ATTORNEY-GENERAL  v.  DOB- 
SON,  JUDGE. 

1896.     Supreme  Court  of  Mls.souri.     135  Mo.  i. 

Sherwood,  J. — One  of  the  judges  of  this  division,  at  the  instance 
of  the  attorney  general,  issued  a  writ  of  certiorari,  directed  to  re- 
spondent, commanding  that  he  certify  to  this  division  of  this  court, 
a  certain  petition  for  a  writ  of  liabcas  corpus,  filed  before  him  by 
Foster  Pollard,  and  Frank  Harris,  together  with  all  such  other 
])apers  which  were  on  file  in  such  proceeding,  or  of  record  therein. 

Complying  with  our  said  writ,  in  obedience  thereto,  the  respondent 
did  certify  to  this  court  the  petition  aforesaid  and  all  accompanying 
papers,  etc.,  on  inspection  whereof  we  entered  a  judgment  and  or- 
der quashing  said  habeas  corpus  proceedings,  and  now,  as  is  proper, 
we  ])rocccd  to  give  the  reasons  which  dictated  our  said  action. 

Tlic  petition  presented  to  the  circuit  court  praying  for  the  writ  of 
habeas  corpus,  after  stating  that  petitioners  are  unlawfully  deprived 
of  their  liberty  by  Keshlear,  marshal  of  the  criminal  court  of  Kan- 
sas City,  Missouri,  proceeds  to  state  in  substance  and  efiFect  the 
following  matters,  towit : 


§     I  HABEAS    CORPUS,    IN    GENERAL.  71$ 

That  petitioners  are  unlawfully  deprived  of  their  liberty,  etc. ;  that 
said  imprisonment  is  illegal  because  petitioners  were  held  by  Walls, 
justice  of  the  peace,  to  answer  to  the  grand  jury  for  the  crime  of 
manslaughter,  and  required  to  give  bail  in  the  sum  of  $1500,  to 
answer  to  that  charge,  when  without  any  dismissal  of  the  charge  of 
manslaughter,  petitioners  were  indicted  for  the  crime  of  murder  in 
the  first  degree;  that  the  grand  jury  which  found  the  indictment 
was  not  summoned  and  selected  according  to  law ;  that  the  indict- 
ment is  insufficient  in  law  because  it  does  not  charge  that  petitioners 
were  guilty  in  any  degree  of  nmrder,  the  indictment  consisting  of 
allegations  necessary  to  prove  the  crime  of  murder  in  the  first  de- 
gree ;  that  the  names  of  all  the  witnesses  before  the  grand  jury 
were  not  indorsed  upon  the  indictment ;  that  petitioners  were  not 
able  at  the  time  of  the  trial  to  procure  the  evidence  they  desired ;  that 
they  were  convicted  on  perjured  testimony,  and  have  recently  dis- 
covered the  means  of  proving  this ;  that  petitioners  are  not  guilty 
of  the  crime  charged  against  them,  and  can  prove  it ;  that  they  are 
under  sentence  of  death  to  be  executed  May  15,  1896;  that  the 
court  had  no  jurisdiction  of  the  persons  of  the  petitioners,  nor  of 
the  ofifense  charged  against  them,  etc.,  etc. 

The  following  is  the  return  to  the  writ  of  certiorari: 

"In  obedience  to  the  wdthin  writ  I  herewith  return  and  cause 
to  be  transmitted  to  the  clerk  of  the  supreme  court  the  original  peti- 
tion and  all  the  papers  in  and  pertaining  to  the  matter  of  habeas 
corpus  referred  to  in  said  writ.  Also  a  certified  copy  of  the  order 
of  the  Jackson  county  circuit  court,  entered  of  record  in  said 
cause,  as  fully  as  the  record  and  files  remain  before  me. 

I  further  return  and  certify  that  the  writ  of  habeas  corpus 
referred  to  was  issued  by  me  about  seven  o'clock  of  .the  evening 
of  May  14,  after  a  conference  with  my  associates  on  the  circuit  bench 
of  the  sixteenth  judicial  circuit,  and  wdth  their  consent  and  approval, 
both  as  to  the  time  fixed  for  the  return  of  the  said  writ,  as  well 
as  for  the  issuance  of  the  same.  My  associates  referred  to  are  Judge 
Edward  L.  Scarritt,  presiding  in  Division  No.  i  ;  Judge  James  H. 
'-^lover,  presiding  in  division  No.  2 ;  and  Judge  John  W.  Henry 
presiding  in  division  four  of  the  said  circuit  court  at  Kansas  City, 
and  each  and  all  of  said  judges  were  invited,  and  expected,  to 
sit  at  the  hearing  upon  the  return  of  the  said  writ.  I  further 
return  and  certify  that  it  was  distinctly  understood  between  myself 
and  the  attorney  for  the  petitioners,  that,  if  they  were  not  remanded 
into  custody,  they  w'ould,  under  no  circumstances  be  discharged 
imtil  the  Supreme  Court  of  Missouri  should  pass  upon  any  questions 
the  circuit  court  might  find  to  be  involved." 

"Given  under  my  hand  this  May  16,  1896. 

"Ckarles  L.  Dobson, 
"Judge  Sixteenth  Judicial  Circuit." 


7l6  WALKER,    ATTORXEY-GENERAL   V.    DOBSON,    JUDGE,  §     I 

The  first  question  for  determination  is  the  sufficiency  of  the 
petition  for  the  issuance  of  the  writ  prayed  for  by  petitioners  and 
granted   by   the   circuit   judge. 

It  is  to  be  remarked  of  the  petition  that  it  signally  fails  to  con- 
form to  any  known  rule  of  pleading  applicable  to  cases  of  this 
sort.  Portions  of  it  consist  of  mere  legal  conclusions ;  the  residue 
of  inconsequential  statements  which  do  not  in  any  manner  tend 
to  affect  or  impair  the  jurisdiction  of  the  trial  court.  As  is  observed 
by  an  author  of  acknowledged  merit:  "The  application  for  a 
writ  of  habeas  corpus  should  put  before  the  court  or  judge  facts 
enough  to  permit  an  intelligent  judgment  to  be  formed  of  the  case. 
The  rules  of  good  pleading  should  be  followed.  Conclusions  of 
law  should  be  avoided.  The  petition  should  show  in  what  the  il- 
legality consists,  and  this  should  be  done  by  stating  the  facts 
showing  it,  as  contradistinguished  from  a  mere  statement  of  the 
conclusion  from  the  facts.  Upon  his  petition  for  a  habeas  corpus 
the  relator  must  state  in  his  petition  the  cause  of  his  detention,  or 
for  what  offense  he  was  arrested,  if  any,  and  set  out  a  copy  of  the 
w^arrant  of  commitment,  or  make  affidavit  that  the  jailer  refused 
to  give  him  a  copy."  Church,  Hab.  Corp.  (2d  ed.)  sec.  91,  and 
cases  cited. 

Section  5346  of  the  habeas  corpus  act  makes  similar  requirements 
because  it  declares  that  the  petition  for  the  writ  "must  state  *  *  * 
all  the  facts  concerning  the  imprisonment  or  restraint,  and  the  true 
cause  thereof ;  *  '  *  *  and,  if  the  imprisonment  be  alleged  to 
be  illegal,  the  petition  must  also  state  in  what  the  illegality  con- 
sists." Here  the  petition  states  the  fact  of  imprisonment,  but  not 
the  cause  thereof. 

And  section  5347  reqviires  that  a  copy  of  the  w^arrant  accompany 
the  i>etition  or  an  excuse  be  given  for  its  absence,  and  there  is  no 
'  such  a^A^rment  nor  excuse.  Elsewhere  it  has  been  ruled  under 
a  section  identical  with  the  one  just  quoted,  that  by  that  portion  of  it 
which  recites  that  "if  the  imprisonment  is  illegal,"  etc,  the  statute 
contemplates  that  the  facts  showing  wherein  the  alleged  illegality 
consists  should  be  stated.     Ex  parte  Deny,  10  Nev,  212. 

In  the  case  before  us  the  petition  does  not  state  nor  pretend  to 
state  "all  the  facts  concerning  the  im]>risonment  and  the  true  cause 
thereof."  There  is  not  even  an  illusion  to  those  facts  or  to  the 
cause  of  detention  contained  in  the  petition.  And  where  the  statute 
requires  a  certain  allegation  in  an  application  of  this  kind,  the  ab- 
sence of  such  allegation  is  a  fatal  defect.  People  ex  rcl.  v.  Cowles, 
59  How.  Pr.  287. 

And  with  regard  to  the  alleged  insufficiency  of  the  indictment, 
the  original,  which  accompanies  the  papers  herein,  and  presumably 
was  (ilcd  witli  the  petition  for  habeas  corpus,  shows  an  instrument 


§     1  HABEAS    CORPUS,    IN    GENERAL.  JIJ 

valid  in  every  respect  on  its  face.     This  amply  refutes  the  allega- 
tions made  as  to  its  invalidity. 

Bnt  for  reasons  to  be  now  stated,  we  need  not  pause  to  inquire 
whether  the  indictment  was  valid  or  not ;  whether  the  grand  jury 
which  presented  it  was  properly  summoned  or  not ;  whether  the 
names  of  all  the  witnesses  were  indorsed  on  the  indictment ;  whether 
the  defendi^nts  therein  were  able  to  procure  the  evidence  they 
desired;  whether  they  were  convicted  on  perjured  testimony,  nor 
whether  they  were  guilty  of  the  crime  charged  against  them,  nor 
whether  they  can  prove  this. 

All  these  things  are,  however,  urged,  to  show,  and  as  a  means 
of  showing,  that  the  court  (what  court  is  not  stated)  had  no 
jurisdiction  of  the  subject  matter  or  of  the  persons  of  the  peti- 
tioners, or  the  offense  charged  against  them,  which  latter  matters 
are  simply  the  statements  of  legal  conclusions.  It  is  however  stated 
that  the  petitioners  are  under  sentence  of  death ;  from  this  it  must 
be  presumed  that  judgment  had  been  rendered  against  them  by 
the  criminal  court  of  Jackson  county,  Missouri,  inasmuch  as  they 
are  said  to  be  in  the  custody  of  the  marshal  of  that  court.  And  as 
pleadings  are  to  be  taken  most  strongly  against  the  pleader,  as 
courts  of  this  state  take  judicial  notice  of  the  existence  and  juris- 
diction of  all  the  courts  in  this  state  and  as  sentence  of  death  is 
the  customar}^  accompaniment  and  result  of  a  judgment  of  a  court 
possessed  of  criminal  jurisdiction,  the  petition  for  habeas  corpus 
in  effect  alleges  that  petitioners  have  had  rendered  against  them 
for  the  crime  of  murder  in  the  first  degree  a  judgment  and  sen- 
tence of  death  by  the  criminal  court  of  Jackson  county,  a  court 
of  competent  jurisdiction,  and  this  is  the  basis  on  which  they  ask 
to  be  discharged ,  on  habeas  corpus,  because  they  claim  that  the 
coiut  had  no  jurisdiction  of  the  subject  matter,  etc.,  for  the  reasons 
stated  in  the  petition  as  already  set  forth. 

Section  S379>  however,  of  the  habeas  corpus  act,  declares:  "Rut 
no  court,  under  the  provisions  of  this  chapter,  shall  *  *  *  have 
power  to  inquire  into  the  legality  or  justice  of  any  *  *  *  * 
judgment  *  *  *  of  ^ny  court  legally  constituted."  That  the 
criminal  court  of  Jackson  county  is  a  court  of  general  jurisdic- 
tion as  to  all  criminal  prosecutions,  and  therefore  "legally  con- 
stituted," is  a  matter  of  judicial  notice. 

Now  all  the  authorities  hold  that  a  petition  asking  the  relief 
petitioners  seek,  must  on  its  face  show,  "probable  cause,"  and 
when  it  appears  from  the  party's  own  showing  that  there  is  no 
ground  pruna  facie  for  his  discharge,  the  court  will  not  issue  the 
writ.  In  short,  the  writ  of  habeas  corpus  is  a  zvrit  of  right,  but 
not  a  writ  of  course.  That  cause  must  be  shown,  is  apparent  as 
well  from  the  atithorities  as  from  the  language  of  section  s.346. 
requiring  that  the  petition  "must  state  all  the  facts  concerning"  the 


'7l8  WALKER,   ATTORNEY-GENER-VL  V.    DOBSON,   JUDGE.  §     I 

imprisonment  or  restraint,  and  the  true  cause  thereof;"  apparent 
also,  from  the  language  of  section  5348  requiring  that  the  writ 
be  granted  without  delay  "unless  it  appear,  from  the  petition  itself, 
or  the  documents  annexed,  that  the  party  can  neither  be  discharged 
nor  admitted  to  bail,  nor  in  any  other  manner  relieved  under  the 
provisions  of  this  chapter."  The  issuance  of  the  writ  is  not  a 
mere  perfunctory  operation.  It  is  not  to  be  had  for  the  asking. 
It  is  intended  as  a  relief  alone  against  unlawful  imprisonment : 
and  no  imprisonment  is  unlawful  when  the  process  is  a  justifica- 
tion of  the  officer.    Com.  ex  rel.  v.  Lucky,  i  Watts,  67. 

Judicial  discretion  is  as  necessary  in  the  issuance  of  the  \VTit  as 
in  the  issuance  of  any  other  writ  whatsoever.  It  can  only  properly 
issue  to  one  entitled  to  it  either  under  the  common  law  or  under 
the  statute.  Were  this  otherwise,  the  writ  would  descend  from 
its  high  plane,  and  its  issuance  become  a  mere  ministerial  act 
which  could  be  performed  by  a  clerk  of  a  court  as  well  as  a  judge. 

Prior  to  the  year  1820,  an  erroneous  opinion  was  prevalent  that 
the  court  was  bound  to  issue  the  writ  as  a  matter  of  course  and 
at  all  events,  without  using  its  discretion  in  determining  the  suffi- 
ciency of  the  grounds  on  which  the  writ  was  prayed.  Since  then, 
however,  all  the  later  rulings,  both  in  England  and  in  America, 
establish  that  a  statement  of  facts  showing  probable  cause  must 
precede  the  obtaining  of  the  writ,  whether  it  be  granted  at  common 
law  or  under  the  statute.  Sometimes,  the  court  to  avoid  the  vain 
and  nugatory  issuance  of  the  writ,  will  grant  a  rule  nisi  at  the 
outset,  to  show  cause  why  the  writ  should  not  issue ;  and  will  not 
go  through  the  barren  formality  of  issuing  the  writ,  when  the  in- 
evitable result  would  be  the  remanding  of  the  prisoner.  These 
views  it  scarcely  needs  saying  are  supported  by  abundant  authority. 
Sim's  case,  7  Cush.  285;  Watkin's  case,  3  Pet.  201  ;  Church,  Hab. 
Corp.   (2d  ed.)   sec.  92,  and  other  cases  there  cited. 

In  the  case  at  bar,  not  only  is  there  an  entire  failure  to  show 
probable  cause  why  the  writ  should  issue,  but  on  the  contrary 
thereof,  it  is  to  be  inferentially,  but  substantially,  gatlicrcd  from 
the  petition  that  the  petitioners  are  held  by  virtue  of  a  judgment 
rendered  against  them,  sentence  of  death  pronounced  against  them, 
and  a  warrant  for  their  execution  issued  and  in  the  hands  of  the 
marshal.  With  some  of  these  facts  actually,  the  residue  virtually, 
apparent  on  the  face  of  the  petition,  a  prima  facie  case  was  made 
out  against  petitioners  and  probable  cause  that  they  were  lawfully 
restrained  of  their  liberty,  and  that  too,  by  the  judgment  of  a 
"court  legally  constituted,"  since  the  circuit  judge  who  granted 
the  writ  was  bound  to  take  judicial  notice  that  the  court  rendering 
the  judgment  was  legally  constituted,  organized  and  established, 
and  had  general  jurisrliction  over  all  criminal  cases,  and  was  there- 
fore bound  to  presun^c  the  correctness  of  its  action  in  the  given 
case. 


§    I  HABEAS   CORPUS,    I.\    GENERAL.  719 

Section  5379  already  quoted,  is  only  declaratory  of  the  familiar 
principle  that  a  judgment  of  a  court  of  competent  jurisdiction 
cannot  be  defeated  or  overthrown  by  a  collateral  attack.  And  the 
sarnie  rule  prevails  regarding  a  judgment  assailed  by  the  issuance 
of  a  writ  of  habeas  corpus  rendered  in  a  criminal  cause,  by  a  court 
of  general  criminal  jurisdiction,  as  in  the  case  of  an  attack  col- 
laterally made  upon  a  judgment  rendered,  in  similar  circumstances 
in  a  civil  action. 

Now  nothing  is  better  established  than  that  the  wTit  of  habeas 
corpus  possesses  none  of  the  attributes  or  performs  any  of  the 
functions  of  the  writ  of  error,  or  an  appeal,  or  certiorari.  Brown, 
Jurisdict.  section  104 ;  Church,  Hab.  Corp.  sec.  196.  By  it  no  mei^e 
error  occurring  at  or  prior  to  the  trial,  can  be  reviewed,  retried  or 
relitigated.  Mere  errors  or  irregularities  which  occur  antecedent 
to,  or  during  the  progress  of,  the  trial,  cannot  abate  the  force  and 
effect  of  the  judgment  of  a  court  of  competent  jurisdiction ;  nor 
be  investigated  by  habeas  corpus.  Thus,  after  conviction  and  judg- 
ment, the  courts  on  habeas  corpus  will  not  inquire  into  the  legality 
of  the  grand  jury,  how  it  was  summoned,  etc. ;  nor  can  the  suffi- 
ciency of  the  evidence  on  which  the  prisoner  was  convicted  be  in- 
vestigated, nor  the  facts  thereof  retried  or  the  evidence  reviewed : 
nor  will  the  prisoner  be  permitted  to  disprove  the  charge  on  which 
he  was  found  guilty,  nor  can  a  defective  indictment,  one  which 
would  be  held  bad  on  demurrer,  be  investigated,  nor  made  the  sub- 
ject of  further  inquiry  or  review.  The  writ  of  habeas  corpus  is  not 
framed  to  retr>^  issues  of  fact  or  review  the  proceedings  of  a  legal 
trial,  however  irregular  or  erroneous.  Church,  Hab.  Corp.  (2d  ed.) 
sees.  367  a,  348,  350,  362,  297,  196,  246,  87,  236,  363,  73,  and 
cases  cited ;  Brown,  Jurisdict.,  sec.  104. 

"If  a  criminal  charge  is  colorable ;  or  "sufficient  to  set  the 
judicial  mind  in  motion,"  or  to  call  upon  it  to  act :  or  make  some 
approach  toward  charging  a  criminal  offense ;  or  intimates  the 
facts  necessary  to  constitute  the  offense  and  a  purpose  to  declare 
thereon ;  or  tends  to  show  a  criminal  offense,  no  matter  how  in- 
formal or  defective ;  or  has  a  legal  tendency  to  prove  each  require- 
ment of  the  statute,  it  will  shield  the  proceedings  from  collateral 
attack."  Van  Fleet,  Coll.  Attack,  sec.  304.  In  a  ivord,  no  errors 
or  irresi^tdarities,  not  going  to  the  question  of  jurisdiction,  are  re- 
viewable on  habeas  corpus.    Ibid. 

And  as  to  jurisdiction,  every  court  in  this  state  is  bound  to  take 
judicial  notice  of  the  fact  that  the  criminal  court  of  Jackson  County 
has  a  general  jurisdiction  to  deal  with  criminal  causes;  so  that 
when  a  judgment  of  that  court  is  brought  in  question  respecting 
any  given  case  of  that  class,  it  will  be  presumed  that  it  had  juris- 
diction of  the  person  tried,  as  well  as  jurisdiction  of  the  subject 


r20 


WALKER,    ATTORNEY-GENERAL   V.    LX)BSON,    JUDGE.  §    I 


matter,  towit,  over  that  class  of  cases,  the  latter  a  jurisdiction  con- 
ferred by  law  and,  therefore,  a  matter  of  judicial  notice. 

Judge  Cooley  says,  "It  is  not  to  be  assumed  that  a  court  of 
general  jurisdiction  has  in  any  case  proceeded  to  adjudge  upon 
matters  over  which  it  had  no  authority;  and  its  jurisdiction  is  to 
be  presumed,  whether  there  are  recitals  in  its  record  to  show  it 
or  not."     Const.  Lim.  (6th  ed.)  500. 

Speaking  of  the  difference  between  courts  of  general  and  those 
of  limited  jurisdiction,  and  of  the  conclusive  presumptions  attendant 
on  the  acts  and  adjudications  of  the  former,  Mr.  Justice  Baldwin 
says:  "A  court  "which  is  competent  by  its  constitution  to  decide 
on  its  ow^n  jurisdiction,  and  to  exercise  it  to  a  final  judgment, 
without  setting  forth  in  their  proceedings  the  facts  and  evidence 
on  which  it  is  rendered,  whose  record  is  absolute  verity,  not  to  be 
impugned  by  averment  or  proof  to  the  contrary,  is  of  the  first 
description ;  there  can  be  no  judicial  inspection  behind  the  judg- 
ment save  by  appellate  power."  Grignon's  Lessee  v.  Astor,  2  How. 
319,  loc  cit.  34-1. 

In  Ex  parte  Watkins,  3  Pet.  193,  Chief  Justice  Marshall  when 
speaking  of  the  conclusive  effect  of  judgments  of  courts  of  general 
jurisdictian,  said :  "An  imprisonment  under  a  judgment  cannot 
be  unlawful,  unless  that  judgment  be  an  absolute  nullity;  and  it 
is  not  a  nullity  if  the  court  has  general  jurisdiction  of  the  subject, 
although  it  should  be  erroneous.  The  circuit  court  of  the  District 
of  Columbia  is  a  court  of  record,  having  general  jurisdiction  over 
criminal  matters.  An  ofifense  cognizable  in  any  court  is  cognizable 
in  that  court.  If  the  ofifense  be  punishable  by  law,  that  court  is 
competent  to  inflict  the  punishment.  The  judgment  of  such  a 
tribunal  has  all  the  obligation  which  the  judgment  of  any  tribunal 
can  have.  To  determine  whether  the  offense  charged  in  the  in- 
dictment be  legally  pimishable  or  not,  is  among  the  most  unques- 
tionable of  its  powers  and  duties.  The  decision  of  this  question 
is  the  exercise  of  jurisdiction,  whether  the  judgment  be  for  or 
against  the  prisoner.  The  judgment  is  equally  as  binding  in  the 
one  case  as  in  the  other ;  and  must  remain  in  full  force  unless  re- 
versed by  a  superior  court  capalile  of  reversing  it.  *  *  *  The 
question  whether  any  offense  was  or  was  not  committed,  that  is, 
whether  the  indictment  did  or  did  not  show  that  an  offense  had 
been  committed,  was  a  question  which  that  court  was  competent 
to  decide.  If  its  judgment  was  erroneous  *  *  *  still  it  is  a 
judgment,  and,  until  reversed,  cannot  be  disregarded.  3  Pet.  loc. 
cit.  203  and  206. 

^)n  this  subject  of  attacking  a  judgment  collaterally,  on  habeas  cor- 
pus, it  has  been  ruled  in  Georgia  that:  After  a  judgment  of  con- 
viction for  felony  has  been  affirmed  by  the  supreme  court  on  writ 
oi   error   brought   by    the    convict,   the   legality   of   his    conviction 


§     I  IIAliEAS    CORPUS,    IN    GENERAL.  72 1 

cannot  be  drawn  in  question  by  a  writ  of  habeas  corpus  sued  out 
by  him,  or  by  another  person  in  his  behalf,  save  for  the  want  of 
jurisdiction  appearing  on  the  face  of  the  record  as  brought  from 
the  court  below  to  the  supreme  court.  Such  affirmance  implies 
that  he  was  tried  by  a  court  of  competent  jurisdiction  legally  con- 
stituted, and  nothing  to  the  contrary. can  be  shown  otherwise  than 
by  an  inspection  of  the  record.    Daniels  v.  Towers,  79  Ga.  785* 

It  will  be  noted  that  the  petition  for  the  writ  herein  makes  no 
pretense  that  the  criminal  court  did  not  have  jurisdiction  in  murder 
cases  or  over  the  persons  of  defendants,  but  claims  that  it  did 
not  have  such  jurisdiction  because  of  defects  in  the  indictment ; 
defective  summoning  of  the  grand  jury ;  perjured  testimony,  etc. ; 
all  of  which  as  already  seen,  do  not  abate,  in  any  respect  the  juris- 
diction of  the  court  over  the  subject  matter,  towit,  its  right  and 
authority  to  try  criminal  cases,  nor  its  jurisdiction  over  the  persons 
of  petitioners. 

But  it  is  unnecessary  to  extend  this  discussion  further,  not  to 
multiply   authorities   which   declare   a   very   familiar   principle. 

This  record  then  presents  a  case  where  a  petition  which  fails 
to  comply  with  statutory  provisions  and  requirements  the  most 
obvious ;  which  fails  to  state  probable  cause ;  which  does  not  make 
out  a  prima  facie  case ;  which  indubitably  and  by  inevitable  infer- 
ence shows  that  a  judgment  has  been  rendered  against  the  peti- 
tioners in  a  court  _  legally  constituted  and  where  the  indictment 
plainly  charges  murder  in  the  first  degree ;  where  the  petition  ex- 
pressly states  that  they  are  under  sentence  of  death ;  and  yet  on 
this  petition  thus  drawn,  and  in  disregard  of  an  express  statutory 
declaration  that  "no  court  shall  have  power  to  inquire  into  the 
legality  or  justice  of  any  judgment  of  any  court  legally  consti- 
tuted," and  in  disregard  of  familiar  principles  enunciated  by  all 
the  authorities,  the  writ  of  habeas  corpus  has  been  granted,  and 
the  petitioners  brought  before  the  court  which  caused  it  to  issue. 

What  was  the  object  and  purpose  of  its  issuance?  Was  it  to 
go  through  the  idle  ceremony  of  bringing  the  petitioners  before 
the  respondent  and  then  remanding  them,  or  was  it  in  order  to 
have  witnesses  summoned ;  reopen  and  try  anew  the  issues  of 
fact  and  of  law  already  adjudged  and  determined  by  the  solemn 
adjudication  of  a  court  of  competent  jurisdiction,  a  judgment  after- 
ward affirmed  by  this  court?  Or  did  the  writ  issue  merely  to 
have  witnesses  summoned,  take  their  testimony  and  thus  show  that 
the  wrong  result  had  been  reached  on  the  trial  had  and  the  adju- 
dication made  and  then  remand  the  prisoners? 

It  matters  not  what  the  purpose  was  or  the  object  in  view. 
In  any  event  the  issue  of  the  writ  was  in  disregard  of  the  plainest 
statutory  provisions  and  prohibitions,  and  was  the  establishment 
of  a  precedent,  most  dangerous  in  its  tendencies  and  innovations, 


722  WALKER,   ATTORAEV-GENERAL  V.    DOBSON,   JUDGE.  §    I 

and  one  not  to  be  contemplated  without  the  gravest  apprehensions, 
just  look  at  it!  If  such  a  proceeding  as  this  is  to  be  tolerated, 
after  a  man  has  been  duly  tried  and  convicted  of  murder,  and 
judgment  rendered  and  that  judgment  affirmed  in  this  court,  and 
the  day  of  his  execution  set,  any  probate  or  county  judge  in  the 
state,  mav,  if  the  trial  has  happened  in  his  county,  interpose  with 
a  habeas  corpus:  retry  the  case  on  the  merits ;  impeach  the  judgm.ent 
of  the  trial  court,  and  discharge  the  prisoner,  if  in  his  opinion 
this  be  the  correct  thing  to  do.  The  fact  that  in  this  instance,  the 
writ  has  been  issued  by  a  judge  of  a  circuit  court,  a  court  of  gen- 
eral jurisdiction,  does  not  alter  the  complexion  of  the  case  in  the 
least,  because  after  all  the  sole  question  to  be  answered  is :  Does 
the  power  exist  anywhere  in  this  state  thus  collaterally  to  impeach 
the  judgments  of  the  courts  of  competent  jurisdiction,  and  thus 
to  thwart  the  judgments  and  mandates  of  this  court?  We  are 
not  of  opinion  that  any  such  power  or  jurisdiction  exists  or  has 
any  foundation  either  in  statutory  law  or  in  legitimate  precedents. 

Besides,  granting  the  existence  of  a  general  jurisdiction  in  re- 
spondent to  issue  writs  of  habeas  corpus,  still  that  jurisdiction  never 
attached  in  this  particular  case ;  was  not  put  in  motion  by  reason 
of  the  fact  that  such  allegations  as  the  statute  requires  to  be  made 
in  the  petition  as  the  basis  for  the  issuance  of  the  writ  in  sections 
5346  and  5347,  were  not  made ;  the  rule  being  that  when  "the 
law  conferring  the  power  on  the  court  to  act  in  the  matter  requires 
the  allegation  of  a  particular  fact  to  exist  as  a  condition  to  its 
exercising  its  power,  such  fact  must  be  averred  for  this  refers  to 
and  circumscribes  the  power  of  the  court  to  act  except  upon  the 
existence  of  such  fact"  Brown,  Jurisdict.  sec  i.  And  such  general 
jurisdiction  was  never  set  in  motion,  because,  further,  it  is  ap- 
parent on  the  face  of  the  petition,  that  the  parties  could  neither 
be  discharged  nor  admitted  to  bail,  nor  in  any  manner  relieved. 
Section  5348. 

r<ut  perhaps  it  may  be  said  that  section  5402,  of  the  habeas  cor- 
pus act,  provides  a  penalty  of  not  exceeding  $1000,  in  favor  of 
any  party  aggrieved,  where  a  court  or  magistrate  refuses  the  writ. 
This  is  a  grevious  misapprehension  of  that  section,  because  by  the 
very  terms  of  that  section,  the  penalty  can  be  exacted  only  when 
the  writ  may  "lawfully  issue,"  and  when  it  may  lawfully  issue  is 
determined  by  prior  sections  of  the  same  chapter. 

Moreover,  it  is  proper  to  say  just  here,  that  the  penalty  pro- 
vision has  its  original  in  the  statute  (^f  31  Car.  II.  Possibly  par- 
liament had  the  power  to  provide  and  enforce  a  penalty  in  the 
circumstances  mentioned;  but  as  imder  the  express  provisions  of 
article  3  nf  our  state  constitution  which  divides  the  powers  of 
government  into  [hrcc  distinct  departments,  the  legislative,  execu- 
tive and  judicial,  and  forbids  either  of  these  departments  to  exercise 


'§    I  IIAIJEAS    CORPUS,    IN    GENERAL.  J2;^ 

any  of  the  powers  properly  belonging  to  the  others,  "except  in 
the  instances  in  this  constitution  expressly  directed  or  permitted," 
the  legislature  of  this  state  has  in  our  opinion  no  power  to  pro- 
vide a  penalty  for  a  judge  or  court  simply  because  a  writ  of 
habeas  corpus  is  denied,  which  denial  is  based  upon  an  honest  en- 
deavor to  discharge  what  is  believed  to  be  the  demands  of  recog- 
nized and  imperative  judicial  duty.  If  the  legislature  may  go  fur- 
ther than  this,  then  it  can  destroy  the  independence  of  the  judiciary, 
and  punish  a  judge  because  he,  after  due  deliberation,  denies  any 
other  writ,  or  honestly  enters  or  renders  any  merely  erroneous 
order  or  judgment. 

On  this  point  it  is  very  forcibly  said  by  Air.  Justice  Brewer : 
"Nothing  is  more  important,  in  any  country,  than  an  independent 
judiciary;  and  no  where  is  it  so  important,  so  absolutely  essential, 
as  under  a  popular  government.  No  man  can  be  a  good  judge 
who  does  not  feel  perfectly  free  to  follow  the  dictates  of  his  own 
judgment  wheresoever  they  may  lead  him.  And  in  a  country  where 
*  *  *  popular  clamor  is  apt  to  sway  the  multitude,  nothing  is 
more  important  than  that  the  judges  shall  be  kept  as  independent 
as  possible.  And  it  is  universal  experience,  and  the  single  voice  of 
the  law  books,  that  one  thing  essential  to  their  independence  is 
that  they  should  not  be  exposed  to  a  private  action  for  damages 
for  anything  that  they  may  do  as  judges."  Cooke  v.  Bangs,  31 
Fed.  Rep.  640;  see  also  i  Jaggard,  Torts,  pp.  120,  121;  Bradley 
V.  Fisher,  13  Wall  335.     *     *     * 

(Remainder  of  opinion  relating  to  certiorari  as  a  proper  writ 
to  review  such  proceedings,  is  omitted.) 

Order  that  the  proceedings  in  Habeas  Corpus  below  be  quashed. 


THOMAS  SIM'S  CASE. 
1851.  Supreme  Judicial  Court  of  Massachusetts.  61  Mass.  285. 

Shaw,  C.  J. — ^This  is  a  petition  for  a  writ  of  habeas  corpus  to 
briuQ-  the  lietitiinier"  be  lore  this  "court,  with'  a  ti'eW't5~"'Ms~disclTarge 

^irom  iinprisoniiKul,  upon  the  grounds  stated  in  the  petition.  We 
were  strongly  urged  to  issue  the  writ,  without  inquiry  into  its  cause, 
and  to  hear  an  argument  upon  the  petitioner's  right  to  a  discharge, 
on  the  return  of  the  Avrit.  This  we  declined  to  do,  on  grounds  of 
principle,  and  common  and  well  settled  practice.  Before  a  zvrit  of 
habeas  corpus  is  p-anted,  sufficient  probable  cause  must  be  shouni : 

"MFrLTh';/" if  a 7^ Fears  irpoii  'the  partfs  o'lvn  slwivin^ "that  there  fs  no 
sutficic!:!  ,^;! »;/;;,/  prima  facie  for  'his  discharge^  the_^  court  will  r.ot 
issue  the  i^'nt.     And  on  a  slight  recurrence  to  the  c'ases'we  are  of 


724  THOMAS   SIM'S    CASE.  §    I 

the  opinion  that  this  is  the  established  rule  and  practice  at  common 
law.  Indeed  the  ordinary  course  is,  for  the  court  applied  to,  to 
grant  a  rule  7zz^rin  the  first  instance,  to  show  cause  why  the  writ 
'Should  not  issue.  Of  course,  if  sufficient  cause  is  shown,  the  rule 
willbe  withheld.  Blake's  case,  2  M.  &  S.  428;  The  King  v.  Marsh, 
1,  Bulst.  27 ;  And  in  Hobhouse's  case,  3  B.  &  Aid.  420,  the  ques- 
tion came  before  the  court  and  was  fully  discussed.  It  was  there 
considered  that,  whether  the  writ  of  habeas  corpus  were  claimed 
at  common  law  or  under  the  statute,  a  proper  ground  ought  to 
be  laid  before  the  court,  previously  to  granting  the  writ.  It  is 
not  granted  as  a  matter  of  course ;  and  the  court  will  not  grant 
the  writ  of  habeas  corpus  when  they  see  that,  in  the  result,  they 
must  remand  the  party.  The  court  in  that  case,  which  was  a  com- 
mitment by  the  house  of  commons,  had  granted  the  writ  in  the  first 
instance,  upon  an  urgent  claim  that  it  was  a  matter  of  right,  and 
some  colorable  authority  cited  in  support  of  it,  and  on  its  return 
stated  the  reasons  why  it  should  not  have  been  done. 

We  think  that  the  same  rule  and  practice  have  prevailed  in  this 
country.  In  Watkin's  case,  3  Pet.  201,  Marshall,  C.  J.,  said: 
"the  writ  ought  not  to  be  awarded,  if  the  court  is  satisfied  the 
])risoner  would  be  remanded."  Indeed,  by  necessary  implication, 
it  is  the  fair  result  of  the  provisions  of  the  habeas  corpus  act  o( 
this  commonwealth.  The  Rev.  Stats,  c.  tii.  §  3,  require,  in  all 
cases  of  an  application  for  the  writ  of  habeas  corpus,  that  the 
party  imprisoned,  or  some  person  in  his  behalf,  shall  present  a 
petition,  and  if  held  under  legal  process,  or  color  or  pretence  of 
legal  process,  shall  annex  a  copy  of  the  process,  under  which  the 
respondent  claims  to  hold  and  detain  him,  or  make  proof  by  affi- 
davit, that  a  copy  of  such  writ  or  warrant,  has  been  applied  for  and 
refused.  But  why  annex  a  copy  of  the  process  unless  it  be  to 
enable  the  court  to  form  an  opinion  whether  the  party  is  rightfully 
held  in  custody  or  not ;  and  why  form  an  opinion  in  that  stage  of 
the  proceeding,  if  it.  is  to  constitute  no  ground  for  judicial  action? 
It  is  urged  that  this  is  a  writ  of  right,  and  therefore  grantaWe 
witbdut  mquiry.  Bun.TTs~iToi  a  tvrif  of  rl^ht  in  that  narrozv  and 
technical  sense:  if  it  were,  the  issitiui;^  of  it  ivnnhi  J)e  a  mere  min- 
isterial act,  and  the  party  claiming  it  might  go  !n  the  clerk,  aiu:  Mie. 
if  out,  as  he  may  a  writ  on  a  claim  for  land  or  money.  It  is  a_icrit_ 
of  right  in  a  larger  and  more  liberal  sense:  a  right  to  be  delivered 
from  all  unlawful  imfrisonment.  Nor  does  this  limit  or  restrain 
the  full  and  beneficial  operation  of  the  writ,  so  essential  to  the 
preservation  of  personal  liberty.  Tlic  same  court  must  decide 
whether  the  imprisonment  complained  of  is  illegal ;  and  whether 
the  inquiry  is  hrul,  in  the  first  instance,  on  the  application,  or  sub- 
sef|uently  on  the  return  of  the  writ,  or  jiartly  on  the  one  nnd  partly 
on  the  other,  it  must  dejiend  on  the  same  facts  and  [principles,  and 


§    I  HABEAS    CORPUS,    IN    GENERAL.  725 

be  governed  by  the  same  rules  of  law.  It  was  upon  these  grounds 
that  we  stated  upon  the  presentation  of  a  similar  petition,  that  no 
sufficient  cause  appeared  upon  the  petition  for  granting  the  writ ; 
and  upon  a  further  consideration  we  now  repeat,  that  when  it^ 
appears  on  the  party's  own  showing  'in "the  petition,  that  if  brought 
B^ToTe  tBe  couft,  he  woiild  not  be  entitled  to  a  discharge,  the  court 
AviTT  not   issue  the  writ.     *     *     * 

'So  iiuich  of  the  opinion  as  relates  to  the  legality  of  the  deten- 
tion is  omitted.) 

See  also  People  v.  Bradley,  60  III.  390;  Campbell,  Ex  parte,  20  Ala.  89; 
Bentley  v.  Terry,  59  Ga.  555;  Watkins,  Ex  parte,  3  Pet.  (U.  S.)  193; 
People  V.  Mayer,  16  Barb.  (N.  Y.)  362;  O'Malia  v.  Wentworth,  65  Me. 
129;  Semler's  case,  41  Wis.  517;  Hoskins  v.  Baxter,  64  Minn.  226;  Ains- 
worth,  Ex  parte,  27  Tex.   731;    Williamson's  Case,  26   Pa.   St.    155. 


7.     Habeas  Corpus,  a  civil  proceeding. 

Ex  PARTE  TOM  TONG, 
1883.     Supreme  Court  of  the  United  States.     io8  U.  S.  556. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  habeas  corpus  sued  out  of  the  Circuit  Court 
of  "tFe  United  .States ^r  the  "Prstfict  of  Calrfornia  by  the  petitioiier, 
Tom  Tong,  a  subject  of  the  emperor  of  China,  for  the  purpose  of 
an  inquiry  into  the  legality  of  his  detention  by  the  chief  of  police 
of  the  cit}-  and  county  of  San  Francisco,  for^n  alleged  violation 
of  an  ordinance  or  ordeL-Xif  the  board  of  supervisors  of  such  cit}- 
and  county  regulating  the  licensing,  etc.,  of  public  laundries,  and 
the  case  comes  here,  before  judgment  below,  on  a  certificate  of 
division  of'opmion  between  the  judges  holding  the  court  as  to 
c"ertaTfr  questions  which  arose  at  the  hearing  The  allegation  iia 
the 'petition  is  that  the  order,  for  the  violation  c)r'wTiTcfi  the  peti- 
tioner is  held,  is  in  violation  and  contravention  of  the  Constitution 
of  ITTe  United  States  and  of  a  treaty  between  the  United  States 
ancTlTie  Emi>eror  of  China. 

A  (juestiqn  which  meets  us  at  the  outset  is  whether  we  have 
jurisdiction,  and  that  depends  on  whether  the  proceeding  is  to  be 
treajtcd  as  civil  or  criminal.  Section  650  oT^the  Revised  Statutes'" 
pi-ovicles  that  whenever,  in  any  civil  suit  or  proceeding  in  the  cir- 
cuit court,  there  appears  a  difiference  of  opinion  between  the  judges 
holding  the  court  as  to  any  matter  to  be  decided,  ruled  or  ordered, 
the  opinion  of  the  presiding  judge  is  to  prevail  and  be  considered 
'the  opinion  of  the  court  for  the  tim^e  being;  and  section  652,  that 


726  EX   PARTE   TOM    TONG.  §     T 

when  final  judgment  or  decree  Is  rendered,  the  ponits  of  disagree- 
ment shall  be  certified  and  entered  of  record  under  the  direction 
of  the  judges.  That  being  done,  the  judgment  or  decree  may,  under 
the  provisions  of  section  693,  be  brought  here  for  review  by  writ 
of  error  or  appeal,  as  the  case  may  be. 

By  section  651,  it  is  provided  that  whenever  any  question  occurs 
on  the  trial  or  hearing  of  any  criminal  proceeding  before  a  circuit 
court,  and  the  judges  are  divided  in  opinion,  the  point  on  which 
they  disagree  shall,  during  the  same  term,  upon  the  request  of  either 
party,  or  of  their  counsel,  be  stated  under  the  direction  of  the 
judges,  and  certified  under  the  seal  of  the  court  to  this  court  at 
its  next  session. 

It  follows  from  these  provisions  of  the  statutes,  that,  if  this 
is  a  civil  suit  or  proceeding,  we  have  no  jurisdiction,  as  there  has 
been  no  final  judgment  in  the  circuit  court,  but.  if  it  is  a  criminal 
proceeding,  we  have. 

The  writ  of  habeas  corpus  is  the  remedy  which  the  law  gives 
for  the  enforcement  of  the  civil  right  of  personal  liberty.  Resort 
to  it  sometimes  becomes  necessary,  because  of  what  is  done  to 
enforce  laws  for  the  punishment  of  crimes,  but  the  judicial  pro- 
ceeding  under  it  is  not  to  inquire  into  the  criininal  act  ivhich  is 
complained  of,  but  into  the  rigJit  to  liberty  not-uHthstanding  the  act. 
Proceedings  to  enforce  civil  rights  are  civil  proceedings,  and  pro- 
ceedings for  the  punishment  of  crinies  are  criminal  proceedings. 
In  the  present  case  the  petitioner  is  held  under  criminal  process. 
The  prosecution  against  him  is  a  criminal  jirosecution,  but  the  writ 
of  habeas  corpus  which  he  has  obtained  is  nut  a  proceeding  in  that 
prosecution.  On  the  contrary,  it  is  a  new  suit  brought  by  liim  to 
enforce  a  civil  right  which  he  claims,  as  against  those  who  are 
holding  him  in  custody,  under  the  criminal  process.  If  he  fails  to 
establish  his  right  to  his  liberty,  he  may  be  detained  for  trial  for 
the  offence ;  but  if  he  succeeds  he  must  l>e  discharged  from  cus- 
tody. The  proceeding  is  one  instituted  by  himself  for  his  liberty, 
not  by  the  government,  to  punish  him  for  his  crime.  The  peti- 
tioner claims  that  the  constitution  of  the  United  States  and  a 
treaty  of  the  United  States  give  him  the  right  to  his  liberty,  not- 
withstanding the  charge  that  has  been  made  against  him,  and  he 
has  obtained  judicial  process  to  enforce  that  right.  Such  a  pro- 
ceeding on  his  part,  is  in  our  opinion,  a  civil  proceeding,  notwith- 
standing his  object  is,  by  means  of  it,  to  get  released  from  custody, 
imder  a  criminal  prosecution.  It  was  said  by  Chief  Justice  Mar- 
shall, speaking  for  the  court,  as  long  ago  E.r  parte  Bollman  & 
Swarthwoiit,  4  Cranch,  75-101 : 

"The  question  whether  the  individual  slialLbe  imprisoned  is  al- 
ways distinct  from  the  question  whether  he  shall  be  convictecroF" 


v5    I  HABEAS    CORPUS,    IN    GENERAL.  '/2*f 

acquitted  of  the  charge  on  which  he  is  tried,  and  theretore  these 
questions  are  separated,  and  may  be  decided  in  different  courts." 

The  questions  that  may  be  certified  to  us  on  a  division  of  opinion 
before  judgment  are  those  which  occur  on  the  trial  or  hearing  of 
a  criminal  proceeding  before  a  circuit  court.  It  follows  that  we 
cannot  take  jurisdiction  of  the  cas.£.-iii  its  present  form,  and  it  is 
consequently    "~ 

Remanded  to  the  circuit  court  for  further  proceedings  according 
to  faw. 

See  also  Kline  v.  Kline,  57  Iowa,  386 ;  Barker,  In  re,  56  Vt.  i ;  People 
V.  Dewey,  23  Misc.  (N.  Y.)  267;  Reynolds,  In  re,  (U.  S.  Dist.  Court),  20 
Fed.   Cas.   592. 


8.     Reviewing  questions  of  fact  on  Habeas  Corpus. 
Ex  PARTE  KAUFMAN. 
t88i.    Supreme  Court  of  Missouri.    73  Mo.  588. 

Norton,  J. — This   is   a  proceeding  by   habeas   corpus  in   which 
Amos  S.  Kaufman,  the  petitioner,  alleges  Tie  Ts  Illegally  restrained 
oTTiis  liberty  in  the  state  penitentiary  by  the  warden 'fHe'reof.     The 
warden  in  his  return  avers  that,  at  the  April  term,  1881,  of  the  crim- 
inal  court  within  and   for  Pettis  county,  said  petitioner  was  con- 
victed of  larceny  in  a  dwelling  house,  in  said"  county,  and  by  the 
judgment  of  the  court  was  sentenced  to  confinement  In  the  penl- 
tentfar_y_for  the  term  of  two  years*,  a  copy  of  which  sentence  and 
judgment  he  files  with  his  return  as  his  authority  for  holding  the 
petitioner.     The  said  judgment  of  said  criminal  court,  under  which 
defendant   is   held,   being   a   final    judgment   rendered   by   a   court 
having  jurisdiction  of  such  matters,  our  duty  in  the  premises  is  pre-         JL*'  ^ 
scribed  by  section  2648,  Revised  Statutes  1879,  which  provides  that  .  .         J 
^vT pro^edlngs  by  habeas  corpus,  the  court  or  magistrate  before  i\/^  ^f^ 
whom  the  case  is  pending,  shall  "forthwith  remand  the  party,  if  it  ' 
shall  appear  that  he  is  detained  In  custody  by  virtue  of  the  final    < 
judgments  order  or  decree  of  any  competent  tribunal  of  criminal 
or  civil  jurisdiction."     Under  this  plain  provision   of  the   statute, 
which   interprets   Itself,   it   is   our   duty   to   remand   the   petitioner, 
which  is  hereby  done. 

fhe  only  ground  urged  upon  us  for  the  discharge  of  the  peti- 
tioner, is.  based  upon  the  alleged  fact,  and  for  the  first  time  here 
"asserted,  that  the  petitioner,  at  the  time  of  his  conviction,  was 
under  the  age  of  eighteen  years,  and  was  not,  therefore,  liable  to 
be  sentenced  to  confinement  In  the  penitentiary.  As  this  fact  does 
fioF  appear  In  the  record,  and  was  not  made  known  In  the  Mist-« 


728  IN    RE    HENRY.  §    I 

prius  court,  we  know  of  no  law  which  would  authorize  us  to  try 
"4!i(rqTiestion  ss  to  whether  the  fact  asserted  is  true  or  not.  The 
duty  of  trying-  this  question  belonged  to  the  court  where  the  trial 
of  the  petitioner  was  pending,  and  in  which  the  judgment  was 
rendered,  and  the  petitioner  should  have  given  that  court  oppor- 
tunity of  performing  the  duty  by  raising  the  question  of  non-age 
there,  instead  of  undertaking  to  have  it  investigated  here.  State 
V.  Gavner,  30  Mo.  44;  Ex  parte  Toney,  11  Mo.  661.  An  order  will 
be  made  remanding  the  petitioner  and  dismissing  the  writ,  in  which 
all  concur. 


In  re  henry. 

1895.    Supreme  Court  of  New  York.     13  Misc.  R.  734;  35 
N.  Y.  Supp.  210. 

Gaynor,  J. — The  petitioner  sues  out  the  writ  of  Jiebcas  corpus 
claiming  to  be  illegally  deprived  of  his"  liberty  by  the  sheriff  of 
Kings  County.  That  officer  makes  return  to  the  writ  that  he  holds 
him  under  a  commitment  of  Henry  F.  Haggerty,  Esq.,  a  police 
justice  of  the  City  of  Brooklyn.  The  commitment  recites  that  the 
petitioner  is  held'under  an  order  of  commitment  to  answer  ja_.cliaise 
of  murder  in  the  first  degree,  made  by  the  said  magistrate  after 
examination.  The  petitioner  traverses  the  return,  by  alleging  that 
no  evidence  was  given  before  the  magistrate  tending  to  show  that 
the  petitioner  committed  the  said  crime. 

There  is  such  a  diversity  of  opinion  b}'  text  writers  and  judges 
in  respect  of  whether  such  a  commitment  is  conclusive,  or  whether 
on  the  contrary,  inquiry  may  go  behind  it  upon  the  writ  of  habeas 
corpus,  to  ascertain  whether  the  committing  magistrate  had  any 
evidence  before  him  upon  which  to  make  it.  that  I  shall  state  what 
I  concluded  while  at  the  bar  and  still  believe  the  rule  in  this  state 
to  be.  Tile  (juestion  is  one  of  jtirisdiction  in  the  magistrate.  The 
jurisdiction  of  magistrates  is  limited.  Tliev"may  not  arbitrarily 
commit  one  to  answer  a  charge  of  crime.  If  an  accused  demand 
an  examination,  the  magistrate  may  not  commit  him  to  answer 
to  a  court  having  cognizance  of  the  crime,  unless  it  "appear  that 
a  crime  has  l)een  committed,  and  that  there  is  sufficient  cause  to 
believe  the  defendant  guilty  thereof."  Cr.  Code,  i;  208.  It  is  not 
necessary  that  the  evidence  be  conclusive  or  sufficLeiit  to  secure  a 
conviction  upon. the  trial.  Xt  may  be  less  than  that.  In  fine,  if 
there  be  any  evidence  that  the  accused  commiffed  tlic  crime,  it  is 
sufficient.  If  there  be  no  such  evidence,  then  the  magistrate  is 
witlir)ut  jurisdiction  to  "commit  him.  Tlie  present  inf|m'ry,  there- 
Tore,    i'^    whether   there   was    anv    evidence   before    tlic    magistrate, 


§    I  HACEAS    CORPUS,    IX    GENERAL.  729 

tliat  the  accused  committed  the  crime;  for  that  is  the  test  of  his 
juriscliction.  Church,  Hab.  Cor.  §  236.  The  petitioner  having 
alleged  in  his  traverse  that  there  was  no  such  evidence,  the  burden 
was  upon  him  to  show  that  to  be  the  case.  To  do  so,  he  put  in 
evidence  all  the  testimony  taken  before  the  magistrate.  I  have 
therefore  to  read  it,  and  determine  v.^hether  it  contains  any  evi- 
dence that  the  accused  committed  the  crime. 

The  accused  lived  with  his  father  and  mother,  old  people.  He 
had  no  occupation  and  was  addicted  to  the  drinking  habit.  He 
and  the  mother  were  on  bad  terms  with  the  father,  and  there  were  ■ 
quarrels.  The  father  was  comparatively  wealthy.  They  left  the 
house  on  Saturday  with  the  avowed  purpose  of  taking  legal  pro- 
ceedings to  have  the  father  and  his  property  put  in  charge  of  a 
committee.  They  did  not  return.  On  Monday  they  consulted  a 
lawyer,  but  he  advised  them  that  their  wish  to  have  the  father  declared 
a  lunatic  or  incompetent,  so  as  to  have  a  committee  appointed,  could 
not  be  carried  out.  They  went  that  night  to  the  residence  of  the 
other  son,  Walter,  at  Flatbush,  and  spoke  with  him  on  the  same 
subject.  The  father  left  alone  at  home,  was  seen  in  and  out  by 
the  neighbors  as  late  as  Wednesday.  Walter  called  there  and  saw 
him  about  5.30  o'clock  Wednesday  evening.  The  next  morning 
about  seven  o'clock,  the  accused  was  seen  by  a  neighbor  hurrying 
from  the  house.  That  day  the  blinds  of  the  house  were  not  opened. 
The  son  Walter  called  at  5.30  and  8.30  that  evening,  and  again  on 
Friday  morning  but  could  not  get  in.  He  called  again  Friday 
afternoon,  and,  finding  the  house  still  closed,  he  notified  the  police, 
and  entrance  being  obtained  by  an  upper  window,  the  father  was 
found  dead  in  the  basement  hall.  He  had  b€en  murdered  by  many 
gashes  and  blows  upon  the  head.  No  entrance  to  the  house  was 
found.  It  was  securely  closed  as  for  the  night.  The  accused 
surrendered  himself  on  Saturday,  and  was  questioned  by  the  police. 
He  had  slept,  Sunday,  Monday  and  Tuesday  nights  at  an  hotel  in 
New  York  City,  and  had  in  his  possession  about  $30  on  Sunday. 
He  denied  that  he  had  been  at  his  father's  house  on  Thursday 
morning.  He  accounted  for  Wednesday  night  by  saying  that  he 
had  stayed  in  Prospect  Park.  He  had  a  cut  on  the  right  wrist. 
He  first  said  he  got  it  cleaning  the  range,  and  then  by  catching 
on  a  nail  getting  over  the  fence  of  Prospect  Park,  when  ordered 
out  by  a  policeman.  The  right  sleeve  of  his  white  shirt  was  water- 
stained,  from  recent  washing.  An  expert  cut  out  several  pieces 
of  it  and  upon  te.st,  found  m  each  corpuscles  of  human  blood. 
These  are  some  of  the  facts.  From  them  the  magistrate  was,  in 
the  exercise  of  due  judicial  prudence  and  discretion,  warranted 
in  concluding  that  there  was  probable  cause  to  believe  that  the, 
accused  was  guilty  of  the  deed.  There  is  some  evidence  favorable 
to  the  accused,  and  it  may  be  said  that  the  evidence  against  him 
j,s  not  conclusive.     But  the  law  does  allow  me  to  weigh  the  evi- 


730  EX    PARTE    HUxXG    HANG.  §    2 

dence,  pro  and  con,  to  fonn  an  opinion  of  guilt  or  innocence.     The 
soTe  question  is  whether  there  was  any  evidence   upon  wJiich  the 
m;agistrate  could  make  the  order  of  commitment.     I   think   there 
was.     The  writ  is  dismissed  and  the  prisoner  remanded. 
Writ  dismissed  and  prisoner  remanded. 

See  also  State  v.  Farlee,  i  N.  J.  L.  41;  Bird,  Ex  parte,  19  Cal.  130;  Zelle 
V.  McHenry,  51  Iowa,  572;  Commonwealth  v.  Chandler,  11  Mass.  83; 
Bresee,  In  re,  82  Iowa,  573 ;  Ex  parte  Rickelt,  61  Fed.  203 ;  Ex  parte  Cham- 
pion, 52  Ala.  311;  State  v.  Scott,  43  La.  Ann.  857;  Tayloe,  In  re,  5  Caw 
(N.  Y.),  39;  State  v.  Doty,  i  Miss.  230;  In  re  Snell,  31  Minn,  no;  Benson 
V.  State,  124  Ala.  92. 

Section  2. —   Courts  issuing  the  writ. 

I.     The  Federal  Courts. 

See  Chapter  XIII,  Sections  751-766  inclusive,  Revised  Statutes 
of  the  United  States. 


Ex  PARTE  HUNG  HANG. 
1883.     Supreme  Court  of  the  United  States.     108  U.  S.  552, 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  is  an  application  for  a  writ  of  habeas  corpus  for  the  pur- 
pose of  an  inquiry  into  the  legality  of  the  detention  of  the  peti- 
fToiier,  Hung  Hang,  a  subject  of  the  Emperor  of  China,  by  the 
chief  of  police,  under  a  warrant  for  his  arrest,  issued  by  the  police 
judge  of  the  city  and  county  of  San  Francisco,  California,  for  a 
violation  of  an  order  or  ordinance  of  the  board  of  supervisors  of 
such  city,  and  county,  alleged  to  be  in  contravention  of  a  treaty  and 
of  the  constitution  of  the. United  States. 

It  has  long  been  settled  that  ordinarily  this  court  cannot  issue 
a  writ  of  habeas  corpus  except  under  its  appellate  jurisdiction. 
Ex  parte  Bollman  &  Swartwout,  4  Cranch  75 ;  Ex  parte  Watkins, 
7  Pet.  568 ;  Ex  parte  Yerger,  8  Wall.  85 ;  Ex  parte  Eange,  18  Wall. 
163;  Ex  parte  Parks,  93  U.  S.  18;  Ex  parte  Virginia,  100  U.  S. 
339;  Ex  parte  Sielx)ld,  id.  371. 

Section  751  of  the  revised  statutes,  which  re-enacts  a  similar 
provision  in  the  judiciary  act  of  1789  (sec.  14),  gives  this  court 
authority  to  issue  the  writ,  but  except  in  cases  affecting  ambas- 
sadors, other  public  ministers  or  consuls,  and  those  in  which  a 
state  is  a  party,  it  can  only  be  done  for  the  review  of  a  judicial 
decision  of  snme  inferior  officer  or  court.  This  petition  presents 
no  sucli  case. 

'ihc  writ  is  consccjurntly  denied. 


§    2  MATTERS  OK  J  L'RISUICTION.      ,  731 

Ex  i-AKTE  MIRZAN. 
1887.     Supreme  Court  of  the  United  States.     119  U.  S.  584. 

This  was  a  motion  for  leave  to  file  a  petition  for  a  writ  of 
haB'eas  corpus.  The  alleviations  were  that  tliejjetitioner  was  a  citi- 
feir;^of  the  United  States  temporarily  residing~Tii  'Alexandria,  in 
Egypt,  in  the  Ottoman  Dominions,  in  1880;  that  while  there  at 
tliat  time  he  was  accused  ofthe^  murder  of  one  Alexander  Dahon 
in  Alexandria;  that  by  direction  of  the  then  Secretary  of  State, 
PTsrace  'Mayhard,  Esq.,  the  then  minister  of  the  United  States  at 
Constantinople,  proceeded  to  Alexandria  for  the  purpose  of  pre- 
sMirrg'  at  his  trial  on  that  accusation:  that  he  was  arraigned  before 
iSHr.  Maynard  on  a  criminal  information  presented  by  Geo.  O.  Bach- 
ellor,  and  held  to  answer  for  a  capital  crime  without  presentment 
or  indictment  by  a  grand  jury,  and  without  a  trial  by  a  jury  or 
any  person  except  the  minister ;  that  he  was  convicted  and,  by  the 
said  minister,  was  sentenced  to  death ;  that  thereafter  by  order 
oi  the  President  of  the  United  States  he  was  removed  from  the 
Ottoman  Dominions  to  the  penitentiary  at  Albany  in  the  State  of 
New  York,  that  he  was  at  the  time  of  the  motion  held  in  custody 
and  deprived  of  his  liberty,  in  said  penitentiary  under  color  of  the 
authority  of  the  United  States ;  that  during  all  these  times  it  was  a 
time  of  peace,  and  not  time  of  war  or  public  danger;  and  that 
tlie  case  did  not  arise  in  the  land  or  naval  forces  or  in  the  militia 
of  the  United  States  nor  was  the  petitioner  at  any  time  in  such 
forces  or  militia.  The  petition  alleged  that  all  these  acts  took  place 
without  warrant  of  law.  and  were  void,  and  in  violation  of  the 
cTm^titution  and  laws  of  the  United  States,  and  of  tbe'^right's  of 
the  petitioner  as  a  citizen  of  the  United  States,  for  various  reasons 
which  were  set  forth  at  length  in  the  petition.  The  prayer  of  the 
petition  was  as  follows : 

"Wherefore  your  petitioner  prays  that  the  writ  of  habeas  corpus 
do  issue  from  this  court,  directed  to  John  McEwen,  the  warden 
of  the  penitentiary  of  the  State  of  New  York  at  Albany,  command- 
ing him  on  a  day  certain  therein  to  be  named,  to  bring  before  this 
court  the  body  of  the  petitioner,  together  with  the  cause  of  his 
detention,  and  to  abide  such  further  orders  as  your  honors  and 
this  court  may  direct. 

"And  your  petitioner  further  prays  that  each,  every,  and  .all 
the  proceedings  aforesaid,  and  the  sentence  aforesaid,  may  be  de- 
clared by  this  court  to  be  null  and  void ;  and  that  the  petitioner 
be  released  and  discharged  from  the  custody  and  imprisonment 
in  which  he  is  now  held  by  color  of  the  authority  of  the  United 
States." 


^ 


"/T^Z  EX    PARTE    ROYALL.  ^    2 

]\rR.   Chief  Justice  Waite  delivered  the  opinion  of  the  court. 

This  motion  is  denied.  As  since  the  act  of  March  3,  1885,  23 
STats.  437,  an  appeal  lie's  to  this  court  from  the  judgments  of  the 
circuit  court  in  habeas  corpus  cases,  this  court  will  not  issue  such 
a  writ,  even  if  it  has  the  power — about  which  it  is  unnecessary 
now  to  express  an  opinion — in  cases  where  it  may  as  well  be  done 
in  the  proper  circuit  court,  if  there  are"~no  special  circumstances 
in  the  case  making  direct  action  or  intervention  by  this  court  nec- 
essary or  expedient.  In  this  case  there  are  no  such  special  cir- 
cumstances, and  the  application  may  as  well  be  iniade  to  the  circuit 
court  for  the  northern  district  of  New  York  as  here.  Our  right 
to  exercise  this  discretion  is  shown  by  the  principles  on  which 
the  decisions  in  Ex  parte  Royall,  Nos.  i  and  2,  117  U.  S.  241,  and 
Ex  parte  Royall,  117  U.  S.  254,  rest.  This  practice  was  suggested 
by  us  and  followed  in  Wales  v.  Whitney,  114  U.  S.  564. 

Denied. 


Ex  parte  royall. 
1886.     Supreme  Court  of  the  United  States.     117  U.  S.  241. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

These  cases  come  here  imder  the  act  of  Mar.  3,  1885,  Ch.  353. 
23  Stats.  437,  which  so  amends  section  764  of  the  revised  statutes 
as  to  give  this  court  jurisdiction,  upon  appeal,  to  review  the  final 
decision  of  the  circuit  courts  of  the  United  States  in  certain  specified 
cases,  including  that  of  a  writ  of  habeas  corpus  sued  out  in  behalf 
of  a  person  alleged  to  be  restrained  of  his  liberty  in  violation  of 
the  Constitution. 

The  first  question  to  be  considered  is  whether  the  circuit  courts 
have  jurisdiction  on  habeas  corpus  to  dis'charge  from  custody  one 
who  is  been  restrained  of  his  liberty  in  violation  of  the  National 
Constitution,  but  who,  at  the  time,  is  held  under  state  process,  for 
trial  on  an  indictment  charging  him  with  an  ofifence  against  the 
laws  of  the  state. 

The  statutory  provisions  which  control  the  determination  of  this 
question  are  founrl  in  the  following  sections  of  the  revised  statutes: 

"Sec.  751.  The  Supreme  Court  and  the  Circuit  and  District 
Courts  shall  haye  the  power  to  issue  writs  of  habeas  corpus. 

".Sec.  752.  The  several  justices  and  judges  of  the  said  courts, 
within  their  respective  jurisdictions,  shall  have  power  to  grant 
writs  of  habeas  corpus  ff>r  the  purpose  of  an  inquiry  into  the  cause 
of  restraint  of  liberty. 

"Sec.  753.     The  writ  of  habeas  corf^us  shall  in  no  case  extend  to 


§    2  MATTERS  OF  JURISDICTION.  733 

the  case  of  a  prisoner  in  jail,  unless  he  is  in  custody  under  or  by 
color  of  the  authority  of  the  United  States,  or  is  commit^ted_Jor 
trial  teforc  some  court  thereof:  or  is  in  custody  for  an  act  done 
of  ""omitted  in  pursuance  of  a  ""law  or  treaty  of  the  United  StaJ^, 
or  ofafrorder,  process  or  decree  of  a  court  or  judge  thereof  ;^r  is  m 
custody  in  violation  of  the  Constitutior^  or  of  a  law  or  treatv^oTTfie 
Ignited  States ;  or  being  a  subject  or  citizen  of  a  foreign  state, 
and  domiciled  therein,  is  in  custody  for  an  act  done  or  omitted 
under  any  alleged  right,  title,  authority,  privilege,  protection  or 
exemption  claimed  under  the  commission  or  order,  or  sanction  of  any 
foreign  state,  or  under  color  thereof,  the  validity  and  efifect  v^hereof 
depend  upon  the  law  of  nations ;  or  unless  it  is  necessary  to  bring 
the  prisoner  into  court  to  testify. 

"Sec.  754.  Application  for  the  writ  of  habeas  corpus  shall  be 
made  to  the  court,  or  justice  or  judge  authorized  to  issue  the  same, 
by  complaint  in  writing,  signed  by  the  person  for  whose  relief 
it  is  intended,  setting  forth  the  facts  concerning  the  detention  of 
the  party  restrained,  in  whose  custody  he  is  detained,  and  by  virtue 
of  what  claim  or  authority,  if  known.  The  facts  set  forth  in  the 
complaint  shall  be  verified  by  the  oath  of  the  party  making  the 
application. 

Sec.  755.  The  court,  or  justice  or  judge  to  whom  the  application 
is  made,  shall  forthwith  award  a  writ  of  habeas  corpus,  unless  it 
appears  from  the  petition  'tself  that  the  party  is  not  entitled  thereto. 
The  writ  shall  be  directed  to  the  person  in  whose  custody  the  party 
is  detained." 

"Sec.  761.  The  court  or  justice  or  judge  shall  proceed  in  a  sum- 
mary way  to  determine  the  facts  of  the  case,  by  hearing  the 
testimony  and  arguments,  and  thereupon  to  dispose  of  the  party 
as  law  and  justice  require." 

It  was  further  provided  that,  pending  the  proceediiigs  on  habeas 
corpus  m  Cases  mentioned  in  §§  763-764,  which  include  an  appli- 
cation for  the  writ  by  a  person  alleged  to  be  restrained  of  his  liberty 
in  violation  of  the  Constitution  of  the  United  States-^and,  "until 
ffftar  judgment  thereih,  and,  after  final  judgment  of  discharge  an^ 
proceeding  against  the  person  so  imprisoned,  or  confined  or  T^ 
strained  of  his  liberty,  in  any  state  court,  or  by^or  under  the  author- 
ity of  an\-  state,  for  any  matter  so  heard  or  determined,  or  in  process 
of  being  heard  and  determined,  under  such  writ  of  habeas  corpus, 
shajl  be  deemed  null  and  void."    §  y66. 

The  grant  to  the  circuit  courts  in  §  751  of  jurisdiction  to  issue 
writs  of  habeas  corpus,  is  in  language  as  broad  as  could  be  well 
employed.  While  it  is  attended  by  the  general  condition,  necessarily 
implied,  that  the  authority  conferred  must  be  exercised  agreeably  to 
^the  principles  and  usages  of  law,  the  only  express  limitation  imposed 
is,  that  the  privilege  of  the  writ  shall  not  be  employed  by — or,  rather, 


734  EX    PARTE    ROYALL.  §    2 

that  the  courts  and  the  judicial  officers  named,  shall  not  have 
the  power  to  award  the  writ  to — any  prisoner  in  jail,  except  in 
specified  cases,  one  of  them  being  where  he  is  alleged  to  be  held 
in  custody  in  violation  of  the  constitution.  The  latter  class  of  cases 
was  first  distinctly  provided  for  by  the  act  of  Feb.  5,  1867,  Ch. 
28,  14  Stat.  385,  which  declares  that  the  several  courts  of  the 
United  States,  and  the  several  justices  and  judges  thereof  within 
their  respective  jurisdictions,  in  addition  to  the  authority  then 
conferred  by  law,  "shall  have  power  to  grant  writs  of  habeas  corpus, 
in  all  cases  where  any  person  may  be  restrained  of  his  or  her  liberty 
in  violation  of  the  Constitution,  or  of  any  treaty  or  law  of  the 
United  States."  Whether  therefore,  the  appellant  is  a  prisoner  in 
jail,  within  the  meaning  of  section  753,  or  is  restrained  of  his  liberty 
by  an  officer  of  the  law,  executing  the  process  of  a  court  of  Virginia, 
in  either  case  it  being  alleged  under  oath  that  he  is  held  in  custody 
in  violation  of  the  constitution,  the  circuit  court  has,  by  the  express 
words  of  the  statute,  jurisdiction  on  habeas  corpus  to  inquire  into 
the  cause  for  which  he  is  restrained  of  his  liberty,  and  to  dispose 
of  him  "as  law  and  justice  require." 

It  may  be  suggested  that  the  state  court  is  competent  to  decide 
whether  the  petitioner  is  or  is  not  illegally  restrained  of  his  libert}' ; 
that  the  appropriate  time  for  the  determination  of  that  question  is  at 
the  trial  of  the  indictment;  and  that  his  detention  for  the  purpose 
simply  of  securing  his  attendance  at  the  trial  ought  not  to  be  deemed 
an  improper  exercise  by  that  court  of  its  power  to  hear  and  decide  the 
case.  The  first  of  these  propositions  is  undoubtedly  sound ;  for  in 
Robb  V.  Connolly,  iii  U.  S.  624,  637,  it  was  held  upon  full  consider- 
ation, that  "a  staU-  cnnrt  nf  original  jurisilictiQn,  having  the  parties 
before  it,  mav^  consistently  with  existing  federal  legislation,  deter- 
mine cases  at  law  or  in  equity,  arising  under  the  constitution  and 
laws  of  the  United  States,  or  involving  rights  de])endent  upon  such 
constitution  or  laws ;"  and  that  "upon  the  state  courts,  ecjually  with 
the  courts  of  the  Union,  rests  the  obligation  to  guard,  enforce  and 
protect,  every  right  granted  or  secured  by  the  constitution  of  the 
United  vStates,  and  the  laws  made  in  pursuance  thereof,  whenever 
those  rights  are  involved  in  any  suit  or  proceeding  before  them." 
I'ut  with  respect  to  the  other  propositions,  it_is  clear  that,  if  the 
local  statute  under  which  Royall  was  indicted,  he  repugnant  to  the 
constitution,  the"  prosecution  agaTiist  him  has  notliing  upon  \vhich 
to  rest,  and  the  entire  proceeding  a-ainst  liim  is  a  nullity.  As  was 
.said  in  Jlx  parte  Siebold,  too  U.  S.  371,  2>7^),  "An  unconstitutional 
law  is  void,  and  is  as  no  law.  An  offence  created  by  it  is  not  a 
crime.  A  conviction  under  it  is  not  merely  erroneous,  but  is  illegal 
and  void,  and  cannot  be  a  legal  cause  of  imprisonment."  So  in 
Ex  parte  Yarbrnugh,  i  m  IT.  S.  ^>5i,  654,  it  is  said  that  if  the 
statute  ])r(S(ril)ing  the  offence  for  which  Yarbrough  and  his  asso- 


§    2  MATTERS  OJ--   j  L'KISDICTION.  735 

dates  were  convicted  was  void,  the  court  which  tried  them  was 
without  jurisdiction,  and  they  were  entitled  to  be  discharged.  It 
would  seem — whether  reference  be  had  to  the  act  of  1867  or  to  exist- 
ing statutory  provisions^that  it  was  the  purpose  of  congress  to 
invest  the  courts  of  the  Union,  and  the  justices  and  judges  thereof, 
with  power  upon  writs  of  habeas  corpus,  to  restore  to  liberty  any 
person,  within  their  respective  jurisdictions,  who  is  held  in  custody, 
by  whatever  authority,  in  violation  of  the  constitution  or  any  law  or 
treaty  of  the  United  States.  The  statute  evidently  contemplated 
that  cases  might  arise  when  the  ix>wer  thus  conferred  should  be 
exercised,  during  the  progress  of  proceedings  instituted  against  the 
petitioner  in  a  state  court,  or  by  or  under  the  authority  of  a  state, 
on  account  of  the  very  matter  presented  for  determination  by  the 
writ  of  habeas  corpus;  for  care  is  taken  to  provide  that  any  such 
proceedings,  pending  the  hearing  of  the  case  upon  the  writ  and  until 
final  judgment  and  after  the  prisoner  is  discharged,  shall  be  null 
and  void.  If  such  were  not  the  clear  implication  of  the  statute, 
still,  as  it  does  not  except  from  its  operation  cases  in  which  the 
applicant  for  the  writ  is  held  in  custody  by  the  authority  of  a 
state,  acting  through  its  judiciary  or  by  its  officers,  the  court  could 
not,  against  the  positive  language  of  congress,  declare  any  such 
exception,  unless  required  to  do  so  by  the  terms  of  the  constitution 
itself.  But  as  the  judicial  power  of  the  nation  extends  to  all  cases 
arising  under  the  constitution,  the  laws  and  treaties  of  the  United 
States ;  as  the  privilege  of  the  writ  of  habeas  corpus  cannot  be  sus- 
pended unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it ;  and  as  congress  has  power  to  pass  all  laws 
necessary  and  proper  to  carry  into  execution  the  powers  vested  by 
the  constitution  in  the  government  of  the  United  States  or  in  any  de- 
partment or  officer  thereof;  no  doubt  can  exist  as  to  the  power  of 
congress  to  thus  enlarge  the  jurisdiction  of  the  courts  of  the 
Union  and  of  their  justices  and  judges.  That  the  petitioner  is  held 
under  the  authoritv  of  a  state  cannot  alTect  the  (iuestion  of  the 
junsOiction  oTTfie  circuit  court  to  inquire  into  the  cause  of  his 
commitment,  and  to  discharge  him  if  he  is  restrained  of  his  liberty 
in  Viotatron  of  the  Constitution.  Tlie  grand  jurors  who  found  the 
Thdictment,  the  court  into  which  it  was  returned  and  by  whose  order 
he  was  arrested,  and  the  officer  who  holds  him  in  custody,  are  all, 
equally  wnth  individual  citizens,  under  a  duty  from  the  discharge  of 
which  the  state,  could  not  release  them,  to  respect  and  obey  the 
supreme  law  of  the  land,  "anything  in  the  constitution  and  laws  of 
the  state  to  the  contrary  notwithstanding."  And  that  equal  power 
does  not  belong  to  the  courts  and  judges  of  the  several  states ; 
that  they  cannot,  under  any  authority  conferred  by  the  States, 
discharge  from  custody  persons  held  by  authority  of  the  courts 
of  the  United   States,  or  of  commissioners  of  such  courts,  or  bv 


736  EX    PARTE   ROYALL.  §    2 

officers  of  the  general  government,  acting  under  its  laws,  results 
from  the  supremacy  and  laws  of  the  United  States.  Ableman  v. 
Booth,  21  How.  506;  Tarble  Case  13  Wall.  397;  Robb  v.  Connolly, 
III  U.  S.  624. 

We  are,  therefore,  of  the  opinion  that  the  circuit  court  has 
jurisdiction  upon  writ  of  habeas  corpus  to  inquire  into  the  cause 
of  appellant's  commitment,  and  to  discharge,  him  if  he  be  held 
m  custody  in  violation  of  the  constitution. 

""  It  remains,  however,  to  be  considered,  whether  the  refusal  of 
that  court  to  issue  the  writ  and  take  the  accused  from  the  custody 
of  the  state  officer  can  be  sustained  upon  any  other  ground  than 
that  upon  which  it  proceeded.  If  it  can  be,  the  judgment  will  not 
be  reversed  because  an  insufficient  reason  may  be  assigned  for  the 
dismissal  of  the  petitions. 

Undoubtedly  the  writ  should  be  forthwith  awarded,  "unless  it 
appears  from  the  petition  itself  that  the  party  is  not  entitled  to  it" 
and  the  case  summarily  heard  and  determined  "as  law  and  justice 
require."  Such  are  the  express  requirements  of  the  statute.  If, 
however,  it  is  apparent  upon  the  petition,  that  the  writ  issued  ought 
not,  on  principles  of  law  and  justice,  to  result  in  the  immediate 
discharge  of  the  accused  from  custody,  the  court  is  not  bound, 
to  award  it  as  soon  as  the  application  is  made.  Ex  parte  Wat- 
kins,  3  Pet.  193,  201;  Ex  parte  Milligan,  4  Wall.  2,  iii.  What 
law  and  justice  may  require,  in  a  particular  case,  is  often  an 
embarrassing  question  to  the  court  or  to  the  judicial  officer  be- 
fore whom  the  petitioner  is  brought.  It  is  alleged  in  the  peti- 
tions— neither  one  of  which  is  accompanied  by  a  copy  of  the 
indictment  in  the  state  court,  nor  accompanied  by  any  statement 
why  such  copy  was  not  obtained — that  the  a])pellant  is  held  in  cus- 
tody under  process  of  a  state  court,  in  which  ht  stands  indicted  for 
an  alleged  ofifense  against  the  laws  of  Virginia.  It  is  stated  in  one 
case  that  he  gave  bail,  but  was  subsequently  surrendered  by  his  sure- 
ties. But  it  is  not  alleged  and  it  does  not  appear,  in  either  case,  that 
he  is  unabTe  to  give  security  for  liis  a])i)earancc  in  the  state  court,  or 
that  reasonable  bail  is  denied  him,  (ir  tiiat  his  trial  will  be  unnecessar- 
ily flelayed.  The  question  as  to  the  constitutitjuality  of  the  law  under 
which  he  is  indicted  must  necessarily  arise  at  his  trial  under  the 
indictment,  and  it  is  one  upon  which  as  we  have  seen,  it  is  competent 
for  the  state  court  to  pass.  Under  such  circumstances  docs  the 
statute  Imperatively  rcr|uire  the  circuit  court,  by  writ  of  habeas  cor- 
pus, to  wrest  the  ]>etitioner  from  the  custody  of  the  state  officers 
in  advance  of  his  trial  in  the  state  court?  We  are  of  the  opinion 
that  while  the  circuit  court  has  ])owcr  to  do  so,  and  may  discharge 
the  acctiscd  in  advance  of  his  trial,  if  he  is  restrained  of  his  liberty 
ni  (-w.i-.t;,.,,  q{  the-  constitution^  it  is  not  bound  in  every  case  to 
'  h  a  jx)wer  itumediatcly  upon  applic.ilioii  I)L'iiig  made  for 


I    2  MATTERS  OF  JURISDICTION.  'J2i7 

the  writ.  We  cannot  suppose  that  congress  intended  to  compel 
those  courts  by  such  means,  to  draw  to  themselves  in  the  first  in- 
stance, the  control  of  all  criminal  prosecutions  commenced  in  the 
state  courts  exercising  the  authority  within  the  same  territorial 
limits,  where  the  accused  claims  that  he  is  held  in  custody  in  viola- 
tion of  the  constitution  of  the  United  States.  The  injunction  to  hear 
the  case  summarily,  and  thereupon,  "to  dispose  of  the  party  as  law 
and  justice  require"  does  not  deprive  the  court  of  discretion  as  to 
the  time  and  mode  in  which  it  will  exert  the  powers  conferred  upon 
it.  That  discretion  should  be  exercised  in  the  light  of  the  relations 
existing  under  our  system  of  government,  between  the  judicial 
tribunals  of  the  Union  and  of  the  States,  and  in  recognition  of  the 
fact  that  the  public  good  requires  that  those  relations  be  not  dis- 
turbed by  unnecessary  conflict  between  courts  equally  bound  to 
guard  and  protect  rights  secured  by  the  constitution.  When  the 
petitioner  is  in  custody  by  the  state  authority  for  an  act  done  or 
omitted  to  be  done  in  pursuance  of  a  law  of  the  United  States, 
or  of  an  order,  process  or  decree  of  a  court,  or  judge  thereof ;  or 
where,  being  a  subject  or  citizen  of  a  foreign  state,  and  domiciled 
therein,  he  is  in  custody,  under  like  authority,  for  an  act  done  or 
omitted  to  be  done  under  any  alleged  right,  title,  authority,  privi- 
lege, protection,  or  exemption  claimed  under  the  commission,  or 
order,  or  sanction  of  any  foreign  state,  or  under  color  thereof,  the 
vaHdity  and  effect  whereof  depend  upon  the  law  of  nations ;  in 
such  and  like  cases  of  urgency,  involving  the  authority  and  opera- 
tions of  the  general  government,  or  the  obligations  of  this  country  to. 
or  its  relations  with,  foreign  nations,  the  courts  of  the  United  States 
have  frequently  interposed  by  writs  of  habeas  corpus  and  discharged 
prisoners  who  were  held  in  custody  under  state  authority.  So,  also 
when  they  are  in  the  custody  of  a  state  ofiicer,  it  may  be  necessary 
by  use  of  the  writ,  to  bring  them  into  a  court  of  the  United  States 
to  testify  as  witnesses.  The  present  cases  involve  no  such  consider- 
ations. Nor  do  their  circumstances  as  detailed  in  petitions,  suggest 
any  reason  why  the  state  court  of  original  jurisdiction  may  not, 
without  interference  on  the  part  of  the  courts  of  the  United  States, 
pass  upon  the  constitutionality  of  the  statutes  under  which  the 
appellant  is  indicted.  The  circuit  court  was  not  at  liberty,  under 
the  circumstances  disclosed,  to  presume  that  the  decision  of  the 
state  court  would  be  otherwise  than  is  required  by  the  fundamental 
law  of  the  land,  or  that  it  would  disregard  the  settled  principles  of 
constitutional  law  announced  by  this  court,  upon  which  is  clearly  con- 
ferred the  power  to  decide  ultimately  and  finally  all  cases  arising  un- 
der the  constitution  and  laws  of  the  United  States.  In  Taylor  v. 
Carn-1.  20  How.  583,  595,  it  was  said  to  be  a  recognized  portion 
of  the  duty  of  this  court — and  we  will  add  of  all  other  courts. 
National    and    State — '"to   give   preference   to   such    principles   and 


738  EX   PARTE   ROY  ALL.  §    2 

methods  of  procedure  as  shall  serve  to  conciliate  the  distinct  and 
independent  tribunals  of  the  States  cf  the  Union,  so  that  they 
may  co-operate  as  harmonious  members  of  a  judicial  system  co- 
extensive with  the  United  States,  and  submitting  to  the  paramount 
authority  of  the  same  constitution,  laws  and  Federal  obligations.'' 
And  in  Covell  v.  Heyman,  iii  U.  S.  176,  182,  it  was  declared  "that 
the  forbearance  which  courts  of  co-ordinate  jurisdiction,  adminis- 
tered undc  a  single  system,  exercise  towards  each  other,  whereby 
conflicts  are  avoided,  by  avoiding  interference  with  the  process 
of  each  other,  is  a  principle  of  comity  with  perhaps  no  higher  sanc- 
tion than  the  utility  which  comes  from  concord ;  but  between  state 
courts  and  those  of  the  United  States  it  is  something  more.  It  is 
a  principle  of  right  and  of  law,  and,  therefore,  of  necessity." 

That  these  salutary  principles  may  have  full  operation,  and  in 
harmony  with  what  we  suppose  was  the  intention  of  Congress  in  the 
enactments  in  question,  this  court  holds  that  where  a  person  is  in 
custody,  under  process  from  a  state  court  of  original  jurisdiction, 
for  an  alleged  offence  against  the  laws  of  such  state,  and  it  is  claimed 
that  he  is  restrained  of  his  liberty  in  violation  of  the  constitution 
of  the  United  States,  the  circuit  court  has  a  discretion,  whether  "it 
will  discharge  him,  upon  habeas  corpus,  in  advance  of  his  trial 
in  the  court  in  which  he  is  indicted ;  that  discretion,  however,  to  be 
subordinated  to  any  special  circumstances  requiring  immediate  ac- 
tion. When  the  state  court  shall  have  finally  acted  upon  the  case, 
the  circuit  court  has  still  a  discretion  whether,  under  all  the  cir- 
cumstances then  existing,  the  accused,  if  convicted,  shall  be  put 
to  his  writ  of  error  from  the  highest  court  of  the  state,  or  whether 
it  will  proceed,  by  a  writ  of  habeas  corpus,  summarily  tO'  determine 
whether  the  petitioner  is  restrained  of  his  liberty  in  violation  of  the 
constitution  of  the  United  States.  The  latter  was  substantially 
the  course  adopted  in  Ex  parte  Bridges,  2  Woods,  428.  The  prisoner 
was  indicted  and  convicted  in  one  of  the  courts  of  Georgia  for 
perjury  committed  in  an  examination  before  a  United  States  com- 
missioner under  what  is  known  as  the  enforcement  act  of  congress. 
He  was  discharged  upon  habeas  corpus  sued  out  before  Mr.  Justice 
I'radley,  upon  the  ground  that  the  state  court  had  no  jurisdiction  of 
the  case,  the  offence  charged  being  one  which,  under  the  laws  of 
the  United  States,  Avas  exclusively  cognizable  in  the  Federal  Courts. 
Adverting  to  the  argument  that  where  a  defendant  has  been  regularly 
indicted,  tried  and  convicted  in  a  state  court,  his  only  remedy  was  to 
carry  the  judgment  to  the  state  court  of  last  resort,  and  thence 
by  writ  of  error  to  this  court,  he  said :  "This  might  be  so  if  the  pro- 
cecfling  in  the  state  court  was  merely  erroneous ;  but  where  it  is 
void  for  want  of  jurisdiction,  habeas  corpus  will  lie,  and  may  be  is- 
sued by  any  court  or  judge  invested  with  supervisory  jurisdiction  in 
such  case.     Ex  parte  Lange,   18  Wall.   163."     It  was  further  ob- 


§    2  MATTERS  OF  JURISDICTION.  -39 

served  in  the  same  case,  that  while  it  might  appear  unseemly  that  a 
prisoner,  after  a  conviction  in  a  state  court,  should  be  set  at  liberty 
by  a  single  judge  in  habeas  corpus,  there  was  no.  escape  from  the 
act  of  1867,  which  invested  such  judge  with  power  to  discharge 
when  the  prisoner  was  restrained  of  his  liberty  in  violation  of  a 
law  of  the  United  States. 

As  it  does  not  appear,  that  the  circuit  court  might  not,  in  its  dis- 
cretion and  consistently  with  law  and  justice,  have  denied  the  appli- 
cations for  the  writ  at  the  time  they  were  made,  we  are  of  the  opinion 
that  the  judgment  in  each  case  must  be  affirmed,  but  without  preju- 
dice to  the  right  of  the  petitioner  to  renew  his  applications  to  that 
cbuft  at  some  future  time^  should  the  circumstances  render  it  proper 
to  do  so.  '  '^ 

Affirmed. 

On  the  jurisdiction  of  the  Federal  Courts  to  issue  writs  of  habeas  corpus 
see   article   by   R.    H.    Curtis,    12   Crim.   Law   Mag.    193. 

See  also  King  v.  McLean  Asylum,  64  Fed.  331 ;  Reinitz,  In  re,  39  Fed. 
204 ;  United  States  v.  Lewis,  129  Fed.  823 ;  Yung  Jon,  Ex  parte,  28  Fed. 
308;  Yerger,  Ex  parte,  8  Wall.  (U.  S.)  85;  Siebold,  Ex  parte,  100  U.  S. 
371;   Barry,  In  re,  42  Fed.   113. 


b 


ROBB  V.  CONNOLLY. 
1884.     Supreme  Court  of  the  LTnited  States,     hi  U.  S.  624. 

.On  the  20th  day  of  November,   1883,  one  C.  H.   Bayley,  was, 
arrested  in  the  city  of  San  Francisco,  California,  and  delivered  to 
WrL,  Robb,  who  had  been  empowered  by  the  Governor  of  the  State^ 
oT'Ofeg'oh  to  take  and  receive  him   from  the  proper  authorities^ 
of  the  state  of  California,  and  convey  him  to  the  former  state,  to  be 
there  dealt  with  according  to  law.     *     *     "' 

Bayley  sued  out  a  writ  of  habeas  corpus  from  the  judge  of  the 
superior  court  for  the  city  and  coimty  of  San  Francisco,  directed 
to  Robb,  and  commanding  hini  to  have  the  body  of  the  petitioner 
before  said  judge,  together  with  the  time  and  cause  of  his  deten- 
tion, etc.  His  application  for  the  w-rit  proceeded  upon  the  ground 
that  the  imprisonmeiit  and  detention  were  illegal,  in  that  "no  copy 
of  an  indictment  found  or  affidavit  made,  before  a  magistrtate,' 
charging  "petitioner  with  any  crime,  was  produced  to  the  Governor 
of  California,"  and  consequently,  that  the  warrant  of  arrest  was' 
rssued  without  compliance  with  the  Acts'~of  Congress,^^    ""    .»— •  — 

RoBB'nTade  return  that  he  held  Bayley  "under  the  authority  of 
the^Tnited  States,  "as  evidence  whereof  he  produced  a  copy  of  the 
warrant  of  the  Governor  of  California,  with  his  commission  from 
the  Governor  of  Oregon,  authorizing  him  to  take  and  receive  the 


740  KOBE   V.    CON  MOLLY.  §    2 

prisoner  as  a  fugitive  from  justice.    He  refused  "to  produce  said  C^ 
TT'Bayley.  on  the  ground  that,  under  the  laws  of  the  United  Statesr 
'he  oa^Jtif  iiot  to  produce  said  prisoner,  because  the  honorable  superior 
court  "has  no  power  or  authority  to  proceed  in  the  premises."     For 
this  refusal — the  court  finding  that  the  body  of  the  petitioner  could 
be  produced— Rpbb  was  adjudged  guilty_of  contempt  of  cqurt^  and_. 
by  order  of  the  judge  he  was  arrested^by  tTie  "sherif?,  and  committed^ 
to  jail  until  he  "obeys  said  writ  and  produced  the  body  of  the  said 
TTTFT.  Bavlev,"  or  "until  he  be  otherwise  legally  discharged."     He 
thereupon  sued  out  a  writ  of  habeas  corpus  from  the  Supreme  Court 
oT  California.      His   application  proceeded   upon   the   ground    that 
Bavlev  was  in  his  custody  "under  and  by  virtue  of  the  authoriTy 
of  the  United  States,  and  that  said  superior  court  h-ad  no  jurisdic- 
tion to  proceed  in  the  premises,  and  his  (Robb's)   imprisonment  is 
contrary  to  the  law  of  the  United    States  and   in   exces.s  of  the 
jurisdiction  of  said  court."     Upon  hearing  the  writ  was  dismissed, 
and  Robb  remanded  to  the  custody  of  the  sheriff. 

"It  is  no  part  of  our  duty"  said  the  Supreme  Court  of  California, 
"to  decide  "whether  the  authority  under  which  Robb  holds  Ihe 
prisoner  Bayley  is  sufficient  or  not.  Neither  is  it  incumbent  on  us 
to  decide  whether  Bayley  is  held  under  the  authority  of  the  United 
States,  and  if  so,  how  far  it  is  competent  for  the  court  below 
to  inquire  into  the  legality  of  the  proceedings  under  which  he  is  held. 
Whether  an  affidavit  or  indictment  must  accompany  the  requisition 
or  not;  whether  the  recitals  in  the  governor's  warrant  of  arrest 
are  conclusive  or  simply  prima  facie  evidence  of  the  facts  they 
recite,  all  these  are  authorities  for  the  consideration  of  the  court 
issuing  the  writ,  and  before  whom  the  prisoner  is  to  be  brought. 
The  only  inquiry  in  this  case  relates  to  the  power  of  the  court  below 
to  compel  the  production  of  the  body  of  the  prisoner  be"fore'"itT 
so  that  the  cause  of  this  imprisonmnent  and  detention  can  be  inquired 
into',  and  f)n  this_jpoint  we  have  no  doubt.  It  was  not  the  duty 
of  tlTc  court  issuing  the  writ,  nor  was  it  obliged  to  accept  as  true, 
the  return  of  the  party.  It  was  within,  the  jurisdiction  of  the 
court,  at  least,  to  inquire  into  the  facts  of  the  case  and  the  alleged 
cause  of  detention,  and  to  this  end  it  was  proper  that  the  prisoner 
shouUl  be  brought  into  the  presence  of  the  court,  in  obedience  to  the 
command  of  the  writ,  whereupon  the  prisoner  would  have  had  a 
right  to  traver.se  the  return,  People  v.  Donohue,  84  N.  Y.  438 ;  People 
v.  r.rady,  56  id.  182;  Norris  v.  Newton,  5  McLean  92:  State  v. 
Srhlcmn.  4  TIarr.  (Del.)  577.  This  the  i>etitioner  refused  to  do, 
and  by  such  refusal  was  guilty  of  a  contempt  of  the  court." 

I'Vom  such  judgment  dismissing  the  writ  and  remanding  Robb  to 
the  custody  of  Jhe  sheriff,  he  ijroscnitcd  (liis  writ  of  error. 
"*'Mr.  Justice  7Iarl.\n   delivend    iln-   opinidn   of  tlu-  court.     Tie 
Statcfl  tlio  facts  in  the  foregoing  laii^n.-ic^c,  ;ui(l  contitiued  : 


§    2  MATTERS  OF  JURISDICTION.  74I 

For  the  purpose  of  giving  effect  to  the  second  section  of  the 
article  four  of  the  Constitution  of  the  United  States,  declaring 
that  "a  person  charged  in  any  state  with  treason,  felony  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  another  state, 
shall  on  the  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime."  Congress  passed  the  act  of  Feb.  12, 
1793,  in  relation  to  fugitives  from  justice,  i  Stat.  302.  The  pro- 
visions of  its  first  and  second  sections  have  been  re-enacted  in  sec- 
tions 5278  and  5279  of  the  Revised  Statutes,  which  are  as  follows : 

"Sec.  5278.  Whenever  the  executive  authority  of  any  state  or  ter- 
ritory demands  the  person  as  a  fugitive  from  justice,  of  the  executive 
authority  of  any  state  or  territory  to  which  such  person  has  fled, 
and  produces  a  copy  of  an  indictment  foimd  or  an  affidavit  made  be- 
fore a  magistrate  of  any  state'  or  territory,  charging  the  person  de- 
manded with  having  committed  treason,  felony  or  other  crime  cer- 
tified as  authentic  by  the  governor  or  chief  magistrate  of  the  state 
or  territory  from  whence  the  person  so  charged  has  fled,  it  shall 
be  the  duty  of  the  executive  authority  of  the  state  or  territory  to 
which  such  person  has  fled  to  cause  him  to  be  arrested  and  se- 
cured, and  cause  notice  of  the  arrest  to  be  given  to  the  executive 
authority  making  such  demand  or  to  the  agent  of  such  authority 
appointed  to  receive  the  fugitive,  and  to  cause  the  fugitive  to  be  de- 
livered to  such  agent  when  he  shall  appear.  If  no  such  agent  appear, 
within  six  months  from  the  time  of  the  arrest,  the  prisoner  may  be 
discharged.  All  costs  or  expenses  incurred  in  the  apprehending, 
securing  and  transmitting  such  fugitive  to  the  state  or  territory 
making  such  demand,  shall  be  paid  by  such  state  or  territory. 

"Sec.  5279.  Any  agent  so  appointed  who  receives  the  fugitive 
into  his  custody,  shall  be  empowered  to  transport  him  to  the  state 
or  territory  from  which  he  has  fled.  And  every  person,  who  by  force, 
sets  at  liberty,  or  rescues  the  fugitive  from  such  agent  while  so 
transporting  him,  shall  be  fined  not  more  than  $500  or  imprisoned 
not  more  than  one  year." 

The  penal  code  of  California,  in  conformity  with  the  constitution 
of  that  state,  provides,  in  reference  to  the  superior  court  of  the 
city  and  county  of  San  Francisco,  that  "said  court  and  their  judges, 
or  any  of  them,  shall  have  power  to  issue  writs  of  mandamus, 
certiorari,  prohibition,  quo  zvarranto,  and  habeas  corpus,  on  petition 
by  or  on  behalf  of  any  person  in  actual  custody  in  their  respective 
counties." 

Tlie  authority  and  duty  of  the  judge  of  that  court  to  issue 
a  wvh  of  habeas  corpus  upon  Bayley's  application  is  not  disputed^ 
in  argument.  But  the  contention  of  the  plaintiff  in  error  is,  that  in 
receiving  and  holding  Bayley  for  the  purpose  of  transporting  him 
to  Oregon,  he  was  and  is,  acting  under  the  authority  and  executing 


^_|2  ROBi;  v.  CONXOLLY.  §    2 

the  power  of  the  United  States;  and,  therefore,  that  neither  the 
superior  court  of  San  Francisco,  nor  one  of  its  judges,  could  legally 
compel  him  to  produce  the  prisoner,  or  commit  him  as  for  contempt 
for  refusing  to  do  so.  If  that  court  was  without  jurisdiction  by 
reason  of  the  paramount  authority  of  the  constitution  and  laws  of  the 
United  States  to  compel  the  plaintifif  in  error  in  response  to  the 
Jiabcas  corpus  to  produce  the  prisoner,  then  his  committal  for 
contempt  was  the  denial  of  a  right,  privilege  and  immunity,  secured 
bv  the  supreme  law  of  the  land.  The  claim  by  the  plaintiff' in 
error  that  there  was  such  a  denial  constitutes  the  foundation  of 
our  jurisdiction. 

It  is  contended  that  the  principles  announced  in  Ableman  v. 
Booth,  and  United  States  v.  Booth,  21  How.  506,  and  in  Tarble's 
case  13  Wall.  397,  sustain  the  refusal  of  the  plaintiff  in  error 
to  produce  the  prisoner.  The  soundness  of  this  position  will  be  the 
subject  of  our  first  inquiry. 

In  Ableman  v.  Booth,  the  general  question  was  as  to  the  authority 
of  a  justice  of  the  supreme  court  of  Wisconsin,  upon  a  writ  of 
habeas  corpus  to  compel  a  marshal  of  the  United  States  to  produce 
the  body  of  one,  committed  to  his  custody  by  an  order  of  a  com- 
missioner of  a  circuit  court  of  the  United  States  for  failing  to 
give  bail  for  his  appearance  in  the  district  court  of  the  United  States 
for  that  State,  to  answer  a  charge  of  having  violated  the  provisions 
of  the  fugitive  slave  act  of  September  18,  1850.  In  other  words, 
a  judge  of  the  supreme  court  of  the  state  claimed  and  exercised  the 
right  to  supervise  and  annul  the  proceedings  of  that  commissioner, 
and  to  discharge  a  prisoner  committed  by  him  for  an  ofifence 
against  the  laws  of  the  general  government.  In  United  States  v. 
Booth,  the  question  was  as  to  the  authority  of  a  justice  of  the  su- 
preme court  of  the  same  state,  upon  a  writ  of  habeas  corpus,  to  dis- 
charge one  in  custody  under  a  judgment  of  the  district  court  of  the 
United  States  in  which  he  had  been  indicted  for  an  offense  against 
the  laws  of  the  United  States,  and  by  which  he  had  been  sentenced 
to  l>c  imprisoned  for  the  term  of  one  month,  to  pay  a  fine  of  $1,000, 
and  costs  of  prosecution,  and  to  remain  in  custody  until  the  sentence 
was  complied  with.  The  authority  claimed  by  the  justice  who 
issued  the  writ  and  discharged  the  prisoner  was  affirmed  by  the 
supreme  court  of  that  state,  and  hence,  as  was  said,  the  state 
court  claimed  and  exercised  jurisdiction  over  the  proceedings  and 
juflgmcnt  of  a  district  court  of  the  United  States,  and  upon  a 
summary  ?nd  collateral  proceeding,  by  habeas  corpus,  set  aside  and 
anntillcd  its  judgment,  and  discharged  a  prisoner  who  had  been 
triffl  and  found  guilty  of  an  offence  against  the  laws  of  the 
United  States,  and  sentenced  to  imprisonment  by  the  district  court. 
-•'   I  low.  513.  514. 

ft   u:i,  1i,l,|  that  no  such  |)ar;uuount  ])'i\vcr  existed  in  any  state 


§    2  MATTERS  OF  JURISDICTION.  743 

or  her  tribunals,  since  its  existence  was  inconsistent  with  the  su- 
])remacy  of  the  general  government,  as  defined  and  limited  by  the 
constitution  of  the  United  States  and  the  laws  made  in  pursuance 
thereof,  and  could  not  be  recognized  without  bringing  within  the  con- 
trol of  the  states  the  entire  criminal  code  of  the  United  States, 
including  all  offences  from  the  highest  to  the  lowest,  involving  im- 
prisonment as  a  part  of  the  imprisonment  inflicted.  While  the 
sovereignty  of  the  state  within  its  territorial  limits  to  a  certain  extent 
was  conceded,  that  sovereignty,  the  court  adjudged,  was  so  limited 
and  restricted  by  the  supreme  law  of  the  land,  that  the  sphere  of  ac- 
tion appropriated  to  the  United  States  was  as  entirely  beyond  the 
reach  of  judicial  process  issued  by  a  state  judge  or  a  state  court, 
as  the  proceedings  in  one  of  the  states  were  beyond  the  reach 
of  the  process  of  the  judicial  tribunals  of  another  state. 

"W£.  do  nQL£lilS.§.ti.or];»''  said  this  court,  "the  authority  of  a  state 
court,  or  judge,  who  is  authorized  by  the  laws  of  the  state,  to  issue 
the  writ  of  habeas  corpus,  to  issue  it  in  any  case  where  the  party 
i'S  imprlsOnied  within  its  territorial  limits,  provided  it  docs  not  appear, 
idfieh  the  application  is  made,  that  the  person  imprisoned  is  in  eusfo- 
dy^jinder  the  authority  of  fhcJJnited  States.  The  court  or  judge  has 
a^fighlTo^  inquire, "m  this  mo(3e~oF""proceeding,  for  what  cause  and 
by  what  authority  the  prisoner  is  confined  within  the  territorial 
limits  of  the  state  sovereignty.  And  it  is  the  duty  of  the  marshal, 
or  other  person  having  the  custody  of  the  prisoner,  to  make  known 
to  the  judge  or  court,  by_a„_^proper  return,  ^tlie  authority  by  which 
he  holds  him  in  custody.  This  right  to  inquire  by  process  of_ 
habeas  corpus,  and  the  duty  of  the  officer  to  "nTake~a  return,  grows^ 
necessarily,  out  of  the  complex  character  of  our  government,  and 
the  existence  of  two  distinct  and  separate  sovereignties  within  the 
same  territorial  space,  each  of  them  restricted  in  its  powers,  and 
each,  within  its  sphere  of  action  prescribed  by  the  constitution  of 
the  United  States,  independent  of  the  other.  F.ut  after  the  return 
is  made,  and  the  state  judge  or  court  judicially  apprised  that  the 
paTEy^is^^'m'Tustody  under  the  authority  of  the  United  States,  theV 
cari'proceed  no  further.  They  then  know  that  the  prisoner  is  within 
tlie  domlmon  and  jurisdiction  of  another  government,  and  that 
neither  the  writ  of  Jiabeas  corpus,  nor  any  other  process  issued 
under  state  authority,  can  pass  over  the  line  of  division  betv;een  the 
two  sovereignties.  He  is  then  within  the  dominion  and  exclusive 
jurisdiction  of  the  United  States.  If  he  has  committed  an  oflfence 
against  their  laws,  their  tribunals  alone  can  punish  him.  If  he  is 
wrongfully  imprisoned,  their  judicial  tribunals  can  release  him 
and  give  him  redress.  And,  although,  as  we  have  said,  it  is  the 
duty  of  the  marshal  or  other  person  holding  him,  to  make  laiown. 


dut^ 
lov  a 


)y  a  proper  "return;  the  authority  under  which  he  detains  him,  it 
ts  at  the  same  tTrne  imperatively  his  duty,  to  obey  the  process  of 


744  ROBB  V.    CONNOLLY.  §    2 

the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and 
'to  refuse  obedience  to  the  mandate  or  process  of  any  other  govr 
Trnment.  And,  consequently,  it  is  his  duty,  not  to  take  the  prisoner, 
•or  suffer  him  to  be  taken,  before  a  state  judge  or  court  upon  a 
habeas  corpus  issued  under  state  authority.  No  state  judge. oi:, 
court,  after  they  are  judicially  informed  that  the  i)art}  is  impris- 
o"ned  under  the  authority  of  the  United  States,  has  any  right  to 
interfere  with  him,  or  to  recjuire  him  to  be  brought  before  them. 
And  if  the  authority  of  a  state,  in  the  form  of  judicial  process  or" 
otherwise,  should  attempt  to  control  the  marshal  or  other  author- 
ized officer  or  agent  of  the  United  States,  in  any  respect,  in  the 
custody  of  his  prisoner,  it  would  be  his  duty  to  resist  it.  and  to  call 
to  his  aid  any  force  that  might  be  necessary  to  maintain  the  au- 
thority of  law  against  illegal  interference.  No  judicial  process, 
whatever  form  it  may  assume,  can  have  any  lawful  authority 
outside  of  the  limits  of  the  jurisdiction  of  the  court  or  judge  by 
whom  it  is  issued ;  and  an  attempt  to  enforce  it  beyond  these 
boundaries  is  nothing  less  lawless  violence."    21  How.  523 

Before  considering  the  scope  and  effect  of  that  decision,  it  is 
proper  to  examine  Tarble's  case,  13  Wall.  397,  which  is,  also,  relied 
upon  to  support  the  proposition  that  the  judge  of  the  state  court 
was  without  jurisdiction  to  compel  the  plaintiff  in  error  to  produce 
the  body  of  the  alleged  fugitive  from  justice.  In  that  case  the 
question  was  whether  a  judicial  officer  of  a  state,  or  a  commis- 
sioner of  a  state  court,  had  jurisdiction,  upon  habeas  corpus,  to 
inquire  into  the  validity  of  the  enlistment  of  soldiers  in  the  mili- 
tary service  of  the  United  States,  and  to  discharge  them  from  such 
service,  when,  in  his  judgment,  their  enlistment  had  not  been  made 
in  conformity  with  law.  "It  is  evident,"  said  the  court,  "if  such 
jurisdiction  may  be  exercised  by  any  judicial  officer  of  a  state, 
it  may  be  exercised  by  the  court  commissioner  within  the  county 
for  which  he  is  appointed  ;  and  if- it  may  be  exercised  with  reference 
to  soldiers  that  are  detained  in  the  military  service  of  the  United 
States,  whose  enlistment  is  alleged  to  have  been  illegally  made,  it 
may  be  exercised  with  reference  to  persons  employed  in  any  other 
department  of  the  public  service  when  their  illegal  detention  is 
assertcrl.  It  may  be  exercised  in  all  cases  where  parties  are  held 
imdcr  the  authority  of  the  United  States,  whenever  the  invalidity 
of  the  exercise  of  that  authority  is  affirmed.  The  jurisdiction,  if  it 
cxi.st  at  all,  can  only  be  limited  in  its  ai)plication  by  the  legisla- 
tive power  of  the  state.  It  may  even  reach  to  parties  imprisoned 
under  sentence  of  the  National  courts,  after  regtdar  indictment, 
tri;d  and  conviction,  for  offences  against  the  laws  of  the  United 
States."  13  Wall.  402.  The  groimds  of  the  decision  in  Ableman 
V.  r.onth.  and  United  .States  v.  T'ooth  were  fully  examined,  and 
the  (•<iii(lii>;ioii   reached  is  indicated  in  the   followincf  extract  from 


§    2  MATTERS  OF  JURISDICTION,  745 

the  opinion:  "State  judges  and  state  courts  authorized  by  the  laws 
of  their  states  to  issue  writs  of  habeas  corpus  have  undoubtedly 
the  right  to  issue  tbe  writ  in  any  case  where  a  party  is  alleged  to 
be  illegally  confined  within  their  limits,  unless  it  appear,  upon  his 
application,  that  he  is  confined  under  the  authority  or  claim  and 
color  of  the  authority,  of  the  United  States,  by  any  officer  of  that 
government.  If  such  fact  appear  upon  the  application  such  writ 
should  be  refused.  If  it  do  not  appear,  the  judge  or  court  issuing 
the  writ  has  a  right  to  inquire  into  the  cause  of  imprisonment, 
and  ascertain  by  what  authority  the  person  is  held  within  the 
limits  of  the  state ;  and  it  is  the  duty  of  the  marshal,  or  other  officer 
having  the  custody  of  the  person,  to  give,  by  a  proper  return,  in- 
formation of  this  respect."  lb.  409.  Alluding  to  the  fact  that  the 
language  used  in  Ableman  v.  Booth  and  United  States  v.  Booth 
had  been  construed  by  some  as  applying  only  to  cases  where  a 
person  is  held  in  custody  under  the  undisputed  lawful  authority 
of  the  United  States,  as  distinguished  from  his  imprisonment  under 
mere  claim  and  color  of  such  authority,  the  court  rejected  any  such 
limitation  upon  the  decisions  in  those  cases,  and  said :  "All  that 
is  meant  by  the  language  used  is,  that  the  state  judge  or  state  court 
should  proceed  no  further  when  it  appears,  from  the  application  of 
the  party,  or  the  return  made,  that  the  prisoner  is  held  by  an 
officer  of  the  United  States  under  what,  in  truth,  purports  to  be 
the  authority  of  the  United  States ;  that  is,  an  authority,  the  validity 
of  which  is  to  be  determined  by  the  constitution  and  laws  of  the 
United  States.  If  a  party  thus  held  be  illegally  imprisoned,  it  is 
for  the  courts  or  judicial  officers  of  the  United  States,  and  those 
courts  and  officers  alone,  to  grant  him  release."  lb.  411.  It  was 
adjudged  that  the  state  court  commissioner  was  without  jurisdic- 
tion to  issue  the  writ  for  the  discharge  of  the  prisoner  in  that  case, 
because  it  appeared  upon  the  application  presented  for  the  writ, 
that  "the  prisoner  was  held  by  an  officer  of  the  United  States, 
under  claim  and  color  of  the  authority  of  the  United  States,  as 
an  enlisted  soldier  mustered  into  the  service  of  the  national  gov- 
ernment ;  and  the  same  information  was  imparted  to  the  commis- 
sioner by  the  return  of  the  officer." 

From  this  review  of  former  decisions,  it  is  clear  that  the  question 
now  presented  has  never  been  determined  by  this  court.  In  Able- 
man  V.  Booth,  the  prisoner  as  we  have  seen,  was  held  in  custodv 
by  an  officer  of  the  United  States,  under  a  warrant  of  commitment 
from  a  commissioner  of  the  circuit  court  of  the  United  States,  for 
an  offence  against  the  laws  of  the  general  government.  In  United 
States  V.  Booth,  he  was  in  custody  in  pursuance  of  a  judgment  of 
a  court  of  the  United  States  founded  upon  an  indictment  chargin<x 
him  with  an  ofifence  against  the  laws  of  the  United  States.  In 
Tarble's  case,  the  person  whose  discharge  was  sought  was  held 


746  ROr.V.    V.    COXXOLLV.  §    2 

as  an  enlisted  solider  of  the  anny,  by  an  otificer  of  that  army  directly 
under  the  constitution  and  laws  of  the  United  States. 

No  such  questions  are  presented  here,  unless  it  be,  as  claimed, 
thafTRe'plaintiff  in  error  is,  within  the  principles  of  former  adju- 
dications, an  ofiicer  of  the  United  States^^  wielding  the  authority 
and  executing-  the  power  of  the  nation.  We  are  all  of  opinion  that 
he  was  not  such  an  officer  but  was  and  is  simply  an  agent  of  the 
state  of  Oregon,  invested  with  authority  to  receive  in  her  behalf, 
an  alleged  fugitive  from  the  justice  of  that  state.  By  the  very 
terms  of  the  statute  under  which  the  executive  authority  of  Oregon 
demanded  the  arrest  and  surrender  of  the  fugitive,  he  is  described 
as  "the  agent  of  such  authority."  It  is  true  that  the  executive  au- 
thority of  the  state  in  which  the  fugitive  has  taken  refuge,  is  under 
a  duty  imposed  by  the  Constitution  and  laws  of  the  United  States, 
to  cause  his  surrender  upon  proper  demand  by  the  executive  au- 
thority of  the  state  from  which  he  has  fled.  It  is  equally  true  that 
the  authority  of  the  agent  of  the  demanding  state  to  bring  the  fugi- 
tive within  its  territorial  limits,  is  expressly  conferred  by  the  stat- 
utes of  the  United  States,  and,  therefore,  while  so  transporting 
him,  he  is,  in  a  certain  sense,  in  the  exercise  of  an  authority  derived ' 
from  the  United  States.  But  these  circumstances  do  not  consti- 
tute him  an  officer  of  the  United  States,  within  the  meaning  of 
former  decisions.  He  is  not  appointed  by  the  United  States  and 
owes  no  duty  to  the  national  government,  for  a  violation  of  which 
he  may  be  punished  by  its  tribunals  or  removed  from  office.  His 
authority,  in  the  first  instance,  comes  from  the  state  in  which  the 
fugitive  stands  charged  with  the  crime.  He  is,  in  every  substantial 
sense,  her  agent,  as  well  in  receiving  the  custody  of  the  fugitive, 
as  in  transporting  him  to  the  state,  under  whose  commission  he  is 
acting.  What  he  does,  in  execution  of  that  authority,  is  to  the 
end  that  the  violations  of  the  laws  of  his  state  may  be  punished, 
The  fugitive  is  arrested  and  transported  for  an  offence  against 
her  laws,  not  for  an  offence  against  the  United  States.  The  essen- 
tial difference,  therefore,  between  the  cases  heretofore  determined, 
and  the  present  one,  is  that  in  the  former,  the_iudicial_authorities 
of  the  state  clainKxl  and  exeTctsecT'the  right,  upon  habeas  corpus, 
to  release  persons  Iicld  in  custody  in  pursuance  of  a  Judgment  of 
a  court  of  the  United  States,  or  by  an  order  of  a  circuit  court 
commissioner,  or  by  officers  of  the  Unitcd_  States^  in  execution  of 
their  laws;  while,  in  the  present  case,  the  person  who  sued_out  the 
WT-Tf  was  in  custTxTy^of  an  agent  of  another  state,  charged  with  an 
ofTcnce  against  her  laws. 

Underlying  the  entire  argument  in  behalf  of  the  plaintiff  in 
error  is  the  idea  that  the  judicial  tribunals  of  the  states  are  ex- 
clndcfj  altogether  from  the  consideration  and  determination  of 
questions  involving  an  authority,  or  a  right,  privilege  or  immunity. 


§    2  MATTERS  OF  JURISDICTION.  747 

derived  from  the  constitution  and  laws  of  the  United  States.  But 
this  view  is  not  sustained  by  the  statutes  defining  and  regulating 
the  jurisdiction  of  the  courts  of  the  United  States.  In  establishing 
those  courts,  congress  has  taken  care  not  to  exclude  the  jurisdic- 
tion of  the  state  courts  from  every  case  to  which  by  the  constitu- 
tion the  judicial  power  of  the  United  States  extends.  In  the 
judiciary  act  of  1879  it  is  declared  that  the  circuit  courts  of  the 
United  States  shall  have  original  cognizance,  "concurrent  with  the 
courts  of  the  several  states,"  of  all  suits  of  a  civil  nature,  at  common 
law  or  in  equity,  involving  a  certain  amount,  in  which  the  United 
States  are  plaintiffs  or  petitioners,  or  an  alien  is  a  party,  or  the 
suit  is  between  the  citizen  of  the  state  where  the  suit  is  brought  and 
a  citizen  of  another  state.  By  section  711  of  the  Revised  Statutes 
of  the  United  States,  as  amended  by  the  act  of  Feb.  ii,  1875, 
jurisdiction  exclusive  of  the  courts  of  the  several  states,  is  vested 
in  the  courts  of  the  United  States  of  all  crimes  and  offences  cog- 
nizable under  the  authority  of  the  United  States ;  of  all  suits  for 
penalties  and  forfeitures  incurred  under  their  laws ;  of  all  civil 
causes  of  admiralty  and  maritime  jurisdiction ;  of  seizures  under 
the  laws  of  the  United  States,  on  land  or  on  waters  not  within 
the  admiralty  and  maritime  jurisdiction ;  of  all  cases  arising  under 
the  patent  or  copyright  laws  of  the  United  States ;  of  all  matters 
and  proceedings  in  bankruptcy ;  and  of  all  controversies  of  a  civil 
nature  where  a  state  is  a  party,  except  where  it  is  between  a  state 
and  its  citizens,  or  between  a  state  and  the  citizens  of  another  state, 
or  aliens ;  the  jurisdiction  of  the  states  remaining  unaffected  in  all 
other  cases  to  which  the  judicial  power  of  the  United  States  may 
be  extended.  And  by  the  act  of  Alarch  3,  1875,  the  original  juris- 
diction of  the  circuit  courts  of  the  United  States  is  enlarged  so 
as  to  embrace  all  suits  of  a  civil  nature,  at  common  law  or  in 
equity,  involving  a  certain  amount  arising  under  the  constitution  or 
laws  of  the  United  States,  or  treaties  made,  or  which  shall  be  made, 
under  their  authority,  or  in  which  the  United  States  are  plaintiffs 
or  petitioners,  or  in  which  there  shall  be  a  controversy  between 
citizens  of  different  states,  or  a  controversy  between  citizens  of 
the  same  state  claiming  lands  vmder  grants  of  different  states,  or 
a  controversy  between  citizens  of  a  state,  and  foreign  states,  citizens 
or  subjects.  But  it  is  expressly  declared  that  in  such  cases  their 
jurisdiction  is  "concurrent  with  the  courts  of  the  several  states" — 
the  jurisdiction  of  the  latter  courts,  being  of  course,  subject  to  the 
right  to  remove  the  suit  into  the  proper  court  of  the  United  States, 
at  the  time  and  in  the  mode  prescribed,  and  to  the  appellate  power 
of  this  court,  as  established  and  regulated  by  the  constitution  and 
laws  of  the  United  States.  So,  that  a  state  court  of  original  jurisdic- 
tion, having  the  parties  before  it,  may,  consistently  with  existing  Fed- 
eral legislation,  determine  cases  at  law  or  in  equity,  arising  under  the 


748  ROBB    V.    CONNOLLY.  §    2 

constitution  or  laws  of  the  United  States,  or  involving  rights 
dependent  upon  such  constitution  or  laws.  Upon  the  state  courts, 
equally  with  the  courts  of  the  Union,  rests  the  obligation  to  guard, 
enforce  and  protect  every  right  granted  or  secured  by  the  consti- 
tution of  the  United  States  and  the  laws  made  in  pursuance  thereof, 
whenever  those  rights  are  involved  in  any  suit  or  proceeding  before 
them;  for  the  judges  of  the  state  courts  are  required  to  take  an 
oath  to  support  that  constitution,  and  they  are  bound  by  it,  and  the 
laws  of  the  United  States  made  in  pursuance  thereof,  and  all  treaties 
made  under  their  authority,  as  the  supreme  law  of  the  land,  "any- 
thing in  the  constitution  or  laws  of  any  state  to  the  contrary  not- 
withstanding." If  they  fail  therein,  and  withhold  or  deny  rights, 
privileges  or  immunities  secured  by  the  constitution  and  laws  of  the 
United  States,  the  party  aggrieved  may  bring  the  case  from  the 
highest  court  of  the  state  in  which  the  question  could  be  decided 
to  this  court  for  final  and  conclusive  determination. 

The  recognition,  therefore,  of  the  authority  of  a  state  court,  or 
of  one  of  its  judges,  upon  writ  of  habeas  corpus,  to  pass  upon  the 
legality  of  the  imprisonment,  within  the  territory  of  that  state,  of  a 
person  held  in  custody — otherwise  than  under  the  judgment  or 
orders  of  the  judicial  tribunals  of  the  United  States,  or  by  the 
order  of  a  commissioner  of  a  circuit  court,  or  by  officers  of  the 
United  States  acting  under  their  laws — cannot  be  denied  merely 
because  the  proceedings  involved  the  determination  of  rights,  priv- 
ileges or  immunities  derived  from  the  nation,  or  require  a  con- 
struction of  the  constitution  and  laws  of  the  United  States.  Con- 
gress has  not  undertaken  to  invest  the  judicial  tribunals  of  the 
United  States  with  exclusive  jurisdiction  of  issuing  writs  of  habeas 
corpus  in  proceedings  for  the  arrest  of  fugitives  from  justice  and 
their  delivery  to  the  authority  of  the  state  in  which  they  stand 
charged  with  crime.  When  a  demand  has  been  made,  in  accord- 
ance with  the  constitution  of  the  United  States,  by  the  state  from 
which  the  fugitive  has  fled,  upon  the  executive  authority  of  the 
state  in  which  he  is  found,  that  instrument,  indeed,  makes  it  the 
duty  of  the  latter  to  cause  his  arrest  and  surrender  to  the  executive 
authrjrity  of  the  demanding  state,  or  to  the  agent  of  such  authority. 
lUit  if  it  should  a])])oar  upon  the  face  of  the  warrant  issued  for 
the  arrest  of  the  fugitive,  that  such  demand  was  not  accompanied 
or  sui)ported  by  a  copy,  certified  to  be  authentic,  of  any  indictment 
found  against  the  accused,  or  of  any  affidavit  made  before  a  mag- 
istrate of  the  demanding  state,  charging  the  commission  by  him, 
of  .some  crime  in  the  latter  state,  could  it  Ix^  claimed  that  the  arrest 
of  the  fugitive  would  be  in  jnu-suance  of  the  acts  of  congress,  or 
that  the  agent  of  the  demanding  state,  had  authority  from  the 
United  States  to  receive  and  linld  him  to  be  transported  to  that 
.state  ? 


^    2  MATTERS   OF   JURISDICTION.  749 

This  question  could  not  be  answered  in  the  affirmative,  except 
upon  the  supposition,  not  to  be  indulged,  that,  so  far  as  the  con- 
stitution and  legislation  of  congress  are  concerned,  the  transporting 
of  a  person  beyond  the  limits  of  a  state  in  which  he  resides,  or 
happens  to  be,  to  another  state,  depends  entirely  upon  the  arbitrary 
will  of  the  executive  authorities  of  the  state  demanding  and  of  the 
state  surrendering  him.     Whether  the  warrant  of  arrest,  issued  by 

"the  governor  of  California,  for  the  arrest  of  Bayley,  appeared,  upon 
its  face,  to  be  authorized  and  required  by  the  act  of  Congress ; 
that  is,  whether,  upon  its  face,  a  case  was  made  behind  which  the 
state  courts  or  officers  could  not  go,  consistently  with  the  consti- 
tution and  laws  of  the  United  States,  are  questions  upon  which 
it  is  unnecessary  to  express  an  opinion.  What  we  decide — and 
the  present  case  requires  nothing  more — is,  that,  so  far  as  the 
constitution  and  laws  of  the  United  States  are  concerned  it  is 
competent  for  the  courts  of  the  state  of  California,  or  for  any  of 
her  judges — having  power,  under  her  laws,  to  issue  writs  of  habeas 
corpus,  to  determine,  upon  writs  of  habeas  corpus,  whether  the 
warrant  of  arrest  and  the  delivery  of  the  fugitive  to  the  agent  of 
the  state  of  Oregon,  were  in  conformity  with  the  statutes  of  the 
United  States ;  if  so,  to  remand  him  to  the  custody  of  the  agent 
of  the  State  of  Oregon.  And,^nce  the  fugitive  was  not,  at  the 
time  the  writ  in  c^uestion  issued,  in  the  custody  of  the  United 
States,  by  any  of  their  tribunals  or  officers,  the  couH  or  judge 
issuing  it  did  not  violate  a<ny  right  or  privilege,  or  immunity  secured 

"t^the- constitution  and  Taws  of  the  United  States  in  requiring  the 
production  of  the  body  of  the  fugitive  upon  the  hearing  of  the 
leturn  to  the  writ,  to  the  end  that  he  might  be  discharged  if,  upon 
hearing,  it  was  adjudged  that  his  detention  was  unauthorized  by 
the  act  of  congress  providing  for  the  arrest  and  detention  and 
surrender  of  fugitives  from  justice,  or  by  the  laws  of  the  state  in 
which  he  was  found.  The  writ  was  without  value  or  effect  unless 
the  body  of  the  accused  was  produced.  Subject,  then,  to  the  ex- 
clusive and  paramount  authority  of  the  national  government,  by 
its  own  judicial  tribunals,  to  determine  whether  persons  held  in 
custody  by  authority  of  the  courts  of  the  United  States,  or  by  the 
commissioners  of  such  courts,  or  by  officers  of  the  general  gov- 
ernment, acting  under  its  laws,  are  so  held  in  conformity  with  the 
law,   the   states   have   the   right,   by   their  own    courts,   or  bv   the 

I  judges  thereof,  to  inquire  into  the  grounds  upon  which  any  person, 
within  their  respective  territorial  limits,  is  restrained  of  his  liberty, 
and  to  discharge  him,  if  it  be  ascertained  that  such  restraint  be 
illegal ;  and  this,  notwithstanding  such  illegality  may  arise  from  a 
violation  of  the  constitution  and  laws  of  the  United  States. 

rt  is  proper  to  say  that  we  have  not  overlooked  the  recent  elab- 
orate opinion  of  the  learned  judge  of  the  circuit  court  of  the  United 


750  PEOPLE  V.   BRADLEY.  §    2 

States  for  the  district  of  California  in  the  case  of  In  re  Robb,  19 
Fed.  Rep.  26.  But  we  have  not  been  able  to  reach  the  conclusion 
announced  by  him. 

For  the  reasons  we  have  stated,  and  without  considering  other 
questions  discussed  by  counsel,  the  j\idgmeiit_.Qf-.tlie_Siipr erne  Court 
trf-^fifornia'  must  be 
'''"Affirmed. 

See  also  Booth,  /;;  re,  3  Wis.  i;  Ableman  v.  Booth,  21  How.  (U.  S.) 
506;  Copenhaver,  In  re,  118  Mo.  2,77;  Tarble's  Case,  13  Wall.  (U.  S.) 
397;  Kelly  v.  State,  68  Fed.  652,  655;  West,  Ex  parte,  100  Ala.  65;  Conway, 
Ex  parte,  48  Fed.  77. 

Probabl}'  the  most  uncalled  for  and  extravagant  extension  of  the  doctrine 
of  the  principal  case  is  found  in  the  decision  of  the  Federal  Supreme  Court 
in  Neagle's  case,  135  U.  S.  i ;  that  decision  amounts  to  such  an  evident 
encroachment  on  the  powers  of  the  state  courts  as  to  deserve  the  con- 
demnation which  it  has  received  uniformly.  See  2  Spelling,  Inj.  &  Ex. 
Rem.    Sec.    1 172. 


2.     State  courts. 

In  practically  all  the  states  the  common  law  courts  of  record  have 
power  to  issue  the  writ  and  except  in  cases  where  persons  are 
held  in  custody  by  virtue  of  some  federal  authority,  such  jurisdic- 
tion of  the  state  court  is  concurrent  with  that  of  the  federal  courts. 
It  has  become  a  rule  of  practice  almost  amounting  to  a  principle 
that  in  cases  where  a  person  is  held  in  custody  by  virtue  of  a  state 
statute  which,  it  is  alleged,  is  in  conflict  with  the  state  constitu- 
tion, the  jurisdiction  of  the  state  courts  is  exclusive.  In  other 
words,  the  federal  courts  will  refuse  to  issue  the  writ  unless  it  is 
alleged  that  the  statute  under  which  the  person  is  held  is  in  vio- 
lation of  the  laws,  treaties  or  constitution  of  the  United  States. 

In  most  of  the  states  the  appellate  courts  of  last  resort  and  the 
individual  justices  thereof  are  authorized  to  issue  the  writ.  But 
such  courts  usually  refuse  to  exercise  this  power  as  an  original 
jurisdiction  except  in  extraordinary  cases,  leaving  the  petitioner  to 
his  remedy  before  the  inferior  court. 


PFOPT.E  v.  BRADLEY. 
1871.    Supreme  Court  of  Illinois.    60  111.  390. 

Mr.  Justice  McAllister  delivered  the  opinion  of  the  court: 

This  is  a  prr>cccding  upon  habeas  corpus  issued  out  of  this  court 

upon  the  a]jplication  of  Michael  C-  Ilickcy,  alleging  that  he  was 

unlawfully  imjjrisoncd  by  the  sheriff  of  Cook  county.     111?, sheriff 

t[^s   rifnrurd    ns   tfie.causc  of  the   caption   and   detention   o(  the 


§    2  MATTERS  OF  JURISDICTION.  75 1 

relator,  an  attachment  issued  by  the  criminal  court  of  Cook  county 
"against  him  for  a  contempt  in  failing  to  produce  the  body  of  Eli 
Brown"  upon  a  writ  of  habeas  corpus. 

Jhe -illeg-ality  of  relator's  imprisonment,  is  based  upon  two 
grounds: — ist.  That  the  criminal  court  had  no  jurisdiction  to  issue 
^le  writ  of  habeas  corpus;  that  it  was  wholly  void,  and  therefore 
he  could  not  be  in  contempt  for  not  obeying  it.  2d.  That  the  writ 
'wa's  not  delivered  to  him,  so  that  there  was  no  such  service  as 
bound  him  to  obey  it. 

We  think  the  circumstances  preclude  him  from  objecting  to  the 
service.  The  writ  was  applied  for  and  issued  in  open  court,  while 
he  was  pr'esent  with  the  prisoner,  and  then  read  to  the  relator. 
The  court  then  took  a  recess  and  was  to  convene  in  the  afternoon 
for  the  purpose  of  proceeding  with  the  case.  All  this  he  well 
knew,  and  if  he  had  asked  for  the  writ,  to  make  his  return^  it  is 
presumed  that  it  would  have  been  given  to  him.  But  failing  to 
do  so,  when  he  was  fully  cognizant  of  all  the  proceedings,  will  be 
deemed,  under  the  circumstances  disclosed  by  his  petition,  and  the 
exhibits,  an  acceptance  of  service,  and  a  waiver  of  the  act  of  de- 
livering the  writ  to  him. 

It  may  be  conceded  that,  if  the  court  had  no  jurisdiction  to  issue 
the  writ  of  habeas  corpus  ad  subjicieiiduin  in  any  case,  the  writ 
in  question  was  simply  void,  and  the  person  to  whom  it  was  directed 
could  not  be  chargeable  with  contempt  in  refusing  to  obey  it.  The 
question  of  jurisdiction  is,  therefore,  the  only  one  we  are  called 
upon  to  decide  in  this  case. 

The  criminal  court  of  Cook  county  is  but  the  continuation  of  the 
recorder's  court  of  the  city  of  Chicago,  with  its  territorial  juris- 
diction extended  from  the  boundaries  of  the  city  of  Chicago,  to 
those  of  the  county  of  Cook,  its  criminal  jurisdiction  enlarged  to 
the  inclusion  of  treason  and  murder,  but  its  purely  civil  jurisdic- 
tion in  all  cases  between  citizen  and  citizen  is  taken  away.     *     *     * 

That  the  recorder's  court  had  jurisdiction  of  the  writ  of  habeas 
cotp-us  ad  subjiciendum,  there  can  be  no  doubt.  It  is  a  preroga- 
tive writ,  great  and  efficacious  in  the  protection  of  the  citizen  in 
one  of  the  injost  essential  of  his  personal  rights — his  right  to  lib- 
erty. When  independence  was  achieved,  all  of  the  prerogatives 
of  the  crown  of  England  devolved  upon  the  people  of  the  states, 
and  are  usually,  though  not  always,  exercised  through  statutory 
and  constitutional  enactments,  and  where  jurisdiction  over  any  of 
the  writs  recognized  as  prerogative  has  been  given  by  the  common 
law,  or  conferred  by  statute,  upon  any  of  the  courts  of  the  state, 
amendments  of  the  constitution  continuing  such  courts  will  not  be 
deemed  to  take  away  the  writs,  unless  the  intention  so  to  do  at 
least  fairly  appears. 


•t;2 


PEOPLE  V.  BRADLEY.  §    2 


It  has  been  repeatedly  held  in  England  that  thp  prpmp^ative 
writ  of  certiorari  will  not  be  deemed  taken  from  the  crown  unless 
expressly  mentioned.  Rex  v.  Davis,  5  Term.  R.  626 ;  Rex  v.  Tindalp 
15"  East.  330,  n.  Nor  is  the  rule  limited  to  cases  where  the  crown 
has  an  actual  interest,  but  extends  to  all  prosecutions  in  the  name 
of  the  king.  Rex  v.  Boultbee,  6  N.  &  M.  26,  4  A.  &  E.  498,  i  H. 
&  W.  713.  This  rule  is  one  of  the  many  of  that  great  system, 
the  common  law,  affording  the  strongest  guaranties  of  the  rights 
of  liberty,  and  from  which  system  we  have  borrowed  much,  and 
to  which  have  really  added  but  little,  by  means  of  either  bills  of 
rights,  or  the  development  of  new  principles,  except  in  respect  to  the 
abolition  of  imprisonment  for  debt. 

In  Crowle)''s  case.  2  Swanston  R.  71,  Lord  Eldon  applied  the 
same  rule  to  the  writ  of  habeas  eorpiis,  in  the  following  forcible 
language:  "It  is  then  contended,"  he  says,  "that  the  statute  31 
Car.  II,  contains  an  implied  negative  of  the  general  power  of  the 
court  of  chancery  to  issue  the  writ  because  it  expressly  confers  it 
in  particular  cases.  Be  it  so ;  but  if  the  power  existed  before  that 
statute,  a  power  vesting  a  very  high  prerogative  in  the  king,  I 
say  that  it  could  not  be  taken  away  in  any  case,  by  inference, 
from  an  enactment  which  enforced  it  in  some  cases.  I  go  farther ; 
if  the  prerogative  of  the  king  cannot  be  affected  by  general  words 
in  a  statute,  Avill  a  British  court  of  justice  permit  it  to  be  said 
that  a  statute  designed  to  enforce,  in  particular  instances,  the 
prerogative  in  favor  of  the  liberty  of  the  subject,  shall  deprive 
the  subject  of  that  liberty,  in  any  case." 

But  there  is  nothing  in  the  limitation  of  the  section  of  the  con- 
stitution which  amounts  to  a  negative  of  the  general  power  of  the 
recorder's  court  to  issue  the  writ.  "It  (the  criminal  court)  shall 
have  no  jurisdiction  in  civil  cases,  except  in  those  on  behalf  of  the 
I>eople,  and   incident  to  such  criminal  or  quasi  criminal  matters." 

Blackstone,  in  speaking  of  the  writ  of  habeas  corpus  ad  sub- 
jicioiduin,  says:  "This  is  a  high  prerogative  writ,  and  therefore 
by  the  common  law,  issuing  out  of  the  court  of  king's  bench,  not 
only  in  term  time,  but  also  during  the  vaction,  by  a  flat  from  the 
chief  justice,  or  any  other  of  the  judges,  and  running  into  all  parts 
of  the  king's  dominions,  for  the  king  is  at  all  times  entitled  to 
have  an  account  why  the  liberty  of  any  of  his  subjects  is  restrained. 
wherever  that  restraint  may  be  inflicted."    3  Bl.  Com.  131. 

"The  habeas  corpus  ad  subjiciendum,  is  that  which  issues  in 
criniinal  cases,  and  is  deemed  a  prerogative  writ  which  the  king 
may  issue  to  any  place,  as  he  has  a  right  to  be  informed  of  the 
state  and  condition  of  the  jirisoner,  and  for  what  reasons  he  is 
confined.  It  is  also  in  regard  to  the  subject,  deemed  a  writ  of  right. 
that  is,  such  an  one  as  lie  is  entitled  to  ex  debito  justitiae,  and  is 
in  the  nature  of  a  writ  of  error  to  examine  the  legality  of  the  com- 


§    2  MATTERS  OF  JURISDICTION.  753 

mitment,  and  therefore  commands  the  day,  the  caption  and  cause 
of  detention  to  be  returned."     4  Bac.  Abr.  564. 

The  habeas  corpus  ad  suhjiciendmn  (so  termed  from  the  lan- 
guage of  the  writ,  to  undergo  and  "receive  all  such  things  as  the 
court  shall  consider  of  the  party  in  that  behalf),  issues  in  crim- 
inal cases,  and  is  deemed  a  prerogative  writ  which  the  king  may 
send  to  any  place,  he  having  a  right  to  be  informed  of  the  state 
and  condition  of  every  prisoner,  and  for  what  reason  he  is  con- 
fined. It  is  also,  in  regard,  to  the  subject,  deemed  his  writ  of  right, 
to  which  he  is  entitled  ex  dcbito  justitiae,  and  is  in  the  nature  of 
a  writ  of  error  to  examine  the  legality  of  the  commitment,  and  there- 
fore commands  the  day,  the  caption  and  the  cause  of  the  detention 
to  be  returned."  i  Chit.  Crim.  Law,  120;  2  Tomlin's  Law  Diet. 
63-64. 

The  prerogatives  of  the  crown  of  England  being  here  invested 
in  the  people,  they,  in  the  place  of  the  crown,  are  entitled  to  have 
an  account  why  the  liberty  of  any  citizen  is  restrained,  or,  in  other 
words,  to  be  informed  of  the  state  and  condition  of  the  prisoner, 
and  for  what  reason  he  is  confined. 

Upon  this  ground  the  writ  always  runs  in  the  name  of  the  state 
or  the  people.  The  state,  in  all  cases  of  wrongful  detention,  is.  in 
legal  presumption,  concerned  in  having  justice  done,  and  therefore 
must  be  a  part\  to  the  proceeding  to  remove  it.  Wade  v.  Judge, 
5  Ala.  130. 

The  proceeding  in  habeas  corpus,  says  Mr.  Justice  Betts,  "is  an 
inquisition  by  the  government  at  the  suggestion  and  instance  of 
m  individual,  but  still  in  the  name  and  capacity  of  the  sovereign." 
Barry  v.  Mercein,  5  How.  108. 

Such  being  the  right  of  the  sovereign  in  England,  of  the  people 
of  the  states  here,  and  the  nature  of  the  writ,  it  is  a  case  which 
falls  within  the  very  exception  contained  in  the  clause  limiting 
the  jurisdiction  of  the  court  in  criminal  cases.  It  is  substantially 
a  case  on  behalf  of  the  people,  and  incident  to  criminal  or  quasi- 
criminal  matters. 

The  writ  is  unquestionably  of  common  law  origin.  2  Inst.  55, 
4  Inst.  290,  2  Hale,  P.  C.  144,  2  Vent.  22 ;  and  in  Crowley's  case, 
2  Swanst.  supra,  its  origin  and  the  jurisdiction  of  the  high  courts 
of  England  were  discussed  by  a  great  and  accomplished  judge. 
From  that  case,  and  the  authorities  cited,  it  appears  that  the  courts 
of  Westminster  Hall,  had  a  full  or  partial  jurisdiction  over  the 
writ,  according  to  the  nature  of  their  respective  jurisdictions,  as 
respects  civil  and  criminal  cases.  Hence,  the  King's  Bench,  being 
a  court  of  the  highest  original  jurisdiction  in  civil  and  criminal 
cases,  had  full  and  undisputed  cognizance  of  the  writ  in  all  cases. 
The  common  pleas,  being  a  court  of  civil  jurisdiction  only,  was 
supposed,  prior  to  the  statute  16  Car.  2,  to  have  but  a  partial  juris- 


754  PEOPLE  V.  BRADLEY,  §    2 

diction  of  it.  If  a  party  were  privileged  in  that  court  as  being, 
or  supposed  to  be,  an  officer  or  suitor  of  the  court,  the  writ  might, 
at  common  law,  have  been  awarded  from  that  court.  So  with  the 
exchequer.  But  if  he  were  committed  for  any  criminal  matter, 
those  courts  could  only  have  rem.anded  him  or  taken  bail  for  his 
appearance  in  the  court  of  king's  bench. 

In  Jones'  case,  2  Mod.  iq8,  an  application  for  the  writ  was  made 
to  tlie  common  pleas  for  Jones,  who  was  committed  to  prison  by 
warrant  from  a  justice  of  the  peace.  "The  chief  justice  doubted 
that  a  writ  of  habeas  corpus  could  not  be  granted  in  this  case, 
because  it  was  in  a  criminal  cause,  of  which  the  court  of.  common 
pleas  hath  no  jurisdiction,"  and  the  writ  was  refused. 

In  Wood's  case,  3  Wils.  172,  where  the  party  was  in  custody 
under  color  of  civil  process,  and  was  a  case  between  subject  and 
subject,  the  writ  was  awarded. 

If  the  writ  issued  out  of  chancery,  and  on  return  thereof  the 
lord  chancellor  found  that  the  party  was  illegally  restrained  of  his 
liberty,  he  might  discharge  him ;  or  if  he  found  it  doubtful,  he 
might  bail ;  but  then  it  should  be  to  appear  in  the  king's  bench, 
for  the  chancellor  had  no  power  in  criminal  cases.  2  Toml.  Law 
Diet.  64;  Crowley's  case,  supra. 

The  common  pleas  having  jurisdiction  of  the  writ  so  far  as 
concerned  its  civil  jurisdiction,  in  many  cases  awarded  it,  and  if 
it  appeared,  by  the  return,  that  the  party  was  illegally  imprisoned, 
it  was  held  that  the  court  should  discharge  him,  although  impris- 
oned for  a  supposed  criminal  matter,  because  the  court  could  not 
salvo  juranicnto  sito,  remand  him  to  that  unjust  imprisonment,  or, 
in  other  words,  could  not  refuse  to  discharge  him.  Bushell's  case, 
Vaughan,  155. 

This  distinction,  that  the  authority  of  the  court  over  the  writ 
depends  upon  the  nature  of  the  jurisdiction  of  the  court  itself  in 
respect  to  criminal  cases,  and  the  nature  of  the  cause  of  the  deten- 
tion of  the  person,  on  whose  behalf  the  application  is  made,  is  fully 
recognized  in  Ex  parte  Tobias  Watkins,  3  Peters  (U.  S.)  193. 
Mr.  Chief  Justice  Marshall,  says:  "This  application  is  made  to 
a  court  which  has  no  jurisdiction  in  criminal  cases;  3  Cranch  169, 
which  could  not  revise  this  judgment ;  could  not  reverse  or  affirm 
it  were  the  record  brought  up  directly  by  the  writ  of  error  *  *  ." 
"The  writ  of  habeas  corpus  is  a  high  prei'ogative  writ,  known  to 
the  common  law,  the  great  object  of  which  is  the  liberation  of 
those  who  may  be  im])risoncd  without  sufficient  cause.  It  is  in 
the  nature  of  a  writ  of  error  to  examine  the  legality  of  the  com- 
mitment." *  =*'  *  "We  have  no  ])owcr  to  examine  the  proceed- 
ings on  a  writ  of  error,  and  il  woulfl  be  strange  if.  under  color 
of  a   writ  to  liberate  an   individual    from   imlawfid    imprisonment. 


§    3  SCOPE  OF  THE  REMEDY.  755 

we  could  substantially  reverse  a  judgment  which  the  law  has  placed 
beyond  our  control." 

The_circuit  courts  of  this  state  possess  an  original  common  law 
juriscljciioii-  in  criminal  causes  answering  to  that  of  the  King's 
Bench.  Consequently,  if  our  habeas  corpus  act  had  never  been 
passed,  jurisdiction  of  the  writ  would  have  devolved  upon  the 
circuit  courts  by  common  law.  All  of  that  jurisdiction  is  expressly 
conferred  by  the  constitution  of  1870,  upon  the  criminal  court  of 
Cook  counJ;xi.-SO  that  it  possesses  all  of  the  authority  over  the  writ 
given  by  the  common  law,  and  the  first  section  of  the  habeas  corpus 
act,  R.  S.  269.     *     *     * 

In  accord. — Baker  v.  Gordon,  23  Ind.  204;  Garner  v.  Gordon,  41  Ind.  92. 


Section  3. — Limitations  of  the  Jurisdiction  and  Scope  of  the  Remedy. 

I.     Proper  function  of  the  writ. 

Ex  p.ARTE  COUPLAND. 
1862.     Supreme  Court  of  Texas.     26  Tex.  387;  Supra,  p.  689 


2.     Lack  or  excess  of  jurisdiction  in  court  committing  prisoner. 

^  MILLER  V.  SNYDER. 

1854.     Supreme  Court  of  Judicature  of  Indiana.    6  Ind.  i. 

Perkins,  J. — Motion  for  a  supersedeas. 

Benjamin.  T,. Snyder  petitioned  Judge  Lover ing,  of  the  court  of 
common  pleas  of  Clark  county,  to  grant  him  the  writ  of  habeas 
corpus,  to  be  directed  to  David  W.  Alillcr,  warden  of  our  state 
prison,  requiring  him  to  have  the  body,  etc.,  with  the  cause  of  his 
detenti^gn..  He  alleged  in  his  petition  that  he  was  illegally  im- 
prisoned, etc.  The  writ  issued.  TTic  warden  produced  Snyder 
betore^he  jtidge,  and  returned,  as  the  cause  of  his  detention,  the 
record  of  his  ]n-osccution  in,  and  conviction  and  sentence  by,  the 
-the  court  of  common  pleas,  of  La  Pnnrtc  cntmty,  Indiana,  upon 
a  charge  of  felony  in  1854.  TJic  judL;-c  ordered  the  prisoner. to  be 
discharged  from  the  state  prison  and  returned  to  the  jail  of  La 
Pourte  county,  to  await  the  further  action  of  the  courts  of  said 
county.     The  warden  appealed  to  this  court. 

Did  the  judge  of  the  Clark  common  pleas  err  in  making  the 
order  of  discharge,  etc.  ? 

He  had  authority  to  issue  tne  writ  and  hear  the  cause.  2  R.  S. 
pp.  20  and  22,  ss.  23  and  24. 


756  MILLER   V.    SNYDER.  §    3 

Snvder,  though  a  penitentiary  convict,  had  a  right  to  apply  for 
and  obtain  the  writ.  2  R.  S.  p.  194,  s.  714.  And  if  his  detention 
was  "illegal,"'  said  section  expressly  required  the  judge  to  deliver 
him  "therefrom." 

-  His  detention  or  imprisonment  was  illegal,  because  it  was  under 
a  void  sentence  and  judgment.  That  the  sentence  and  judgment 
were  void,  necessarily  follows  from  the  fact  that  the  court  which 
pronounced  them  had  no  jurisdiction  of  the  cause  in  which  they 
were  declared' — a  point  this  court  has  heretofore  decided.  Siming- 
ton  V.  State,  5  Ind.  R.  479.  In  Horner  v.  Doe,  i  Ind.  R.  130,  this 
court  held,  that  a  judgvieiit,  appearing  tD.^bcj^cndejedJby  aj:ourt 
having  no  jurisdiction  of  tlie  subject  matter,  was  a  nnllity,  and^ 
TnTgJii  de  so  treated,  when  it  came  in  question  collaterally.  See  the 
authorities  there  cited.  Here  the  want  of  jurisdiction  does  appear, 
as  that  of  the  common  pleas  is  conferred  by  statute,  and  we  must 
take  notice  of  its  extent.  In  Williamson  v.  Berry,  8  How.  (U.  S.) 
495,  the  cases  on  this  point  are  reviewed,  and  the  rule  is  declared 
to  be.  "that  where  a  limited  tribunal  takes  upon  itself  to  exercise 
a  jurisdiction  which  does  not  belong  to  it,  its  decision  amounts 
to  nothing,  and  does  not  create  a  necessity  for  an  appeal." 

This  question  of  jurisdiction  the  judge  had  a  right  to  inquire 
into  upon  the  hearing  on  habeas  corpus,  both  upon  general  prin- 
cTples  of  law,  and  under  our  statute.  The  statute  is  (2  R.  S.  p.  195. 
s.  725)  that  the  judge,  on  such  hearing,  when  the  prisoner  is  held 
"upon  any  process  issued  on  any  final  judgment  of  a  court  of  com- 
l)etent  jurisdiction"  shall  not  discharge,  etc.,  plainly  implying  that 
the  question  of  jurisdiction  is  open  to  inquiry.  See,  also,  8  How., 
supra. 

The  judge  did  right  then,  in  discharging  the  prisoner  from  the 
])tiiitentiary  ;  but  the  record  rctin-ned  as  showing  tlic  cause  ofTiTs 
il(  tintion,  showed  that  a  complaint  had  been  preferred  against  him 
of  an  act  of  felony;  that  upon  that  complaint  he  had  been  com- 
mitted to  the  jail  of  La  Pourte  county,  in  which  said  felony  had 
been  perpetrated,  and  that  he  had  never  been  legally  discharged 
from  said  im]>risonment.  This  was  custody  to  which  the  common 
pleas,  as  an  examining  court,  had  a  right  to  commit  the  defendant 
and  from  which  the  judge,  on  hearing  the  habeas  corpus,  had  no 
right  to  discharge;  for  the  statute  enacts  (2  R.  S.  p.  196,  s.  725) 
that  where  a  party  is  in  custody,  "upon  a  warrant  issued  from  the 
circuit  court  or  court  of  common  pleas,  upon  an  indictment  or 
information,"  such  discharge  shall  not  take  place.  In  this  latter 
case — that  of  the  warrant — the  party  is  held  for  trial,  and  not 
upon  final  jud_gment,  and  hence  is  Icg.'illy  in  custodv. 

'I  ho  judge  therefore,  did  right  in  refusing  to  discharge  the  peti- 
tioner from  his  custody,  and  in  remanding  him  to  the  jail  of  La 
Pourte  countv. 


§    3  SCOPE    OF    THE    REMEDY.  757 

Our  attention  has  been  called  to  the  case  of  Wright  v.  State,  5 
Ind.  R.  290,  as  being  decisive  of  that  now  before  us,  but  it  is  not 
even  analogous. 

In  that  case  the  petitioner  for  the  writ  of  habeas  corpus  was  in 
the  custody  of  the  sheriff  upon  a  warrant  issued  from  the  circuit 
court  upon  an  indictment.  In  that  custody  and  by  virtue  of  that 
warrant,  it  was  the  duty  of  the  said  sheriff  to  hold  his  said  pris- 
oner till  discharged  by  due  course  of  law.  While  the  prisoner 
was  thus  in  custody,  he  was  brought  before  the  circuit  court,  in 
which  certain  matters  transpired  that  were  claimed  by  the  prisoner 
to  entitle  him  to  his  release.  Whether  they  did  so  entitle  him  or 
not,  was  a  question,  in  the  first  instance,  for  that  court ;  and  as  it 
had  jurisdiction  of  the  cause  in  which  the  question  arose,  its 
decision  upon  it,  though  erroneous,  was  not  void ;  and  having  de- 
cided that  the  matters  did  not  entitle  the  prisoner  to  his  discharge 
(for  the  remanding  him  was  such  a  decision),  it  was  the  duty  of 
the  officer  still  to  retain  him  under  the  warrant  upon  the  indict- 
ment. 

Take  another  view  of  the  case.  Suppose  Wright  had  actually 
made  a  formal  motion  for  his  discharge,  or  had  pleaded  the  mat- 
ters which  transpired  in  bar  of  further  proceedings,  and  the  court 
had  overruled  his  motion  or  plea,  and  proceeded  to  a  further  trial ;, 
could  the  ruling  have  been  reviewed  upon  habeas  corpus?  Surely 
not ;  and  for  the  reason  that  it  would  have  been  made  by  the  court 
having  complete  jurisdiction  of  it,  and  hence,  however,  erroneous,  it 
would  not  have  been  void,  and  could  not  have  been  impeached 
collaterally,  but  only  reversed  on  appeal  or  writ  of  error. 

(Dissenting  opinion  omitted.) 

Per  Curiam.    The  motion  for  a  supersedeas  is  denied  with  costs. 


Ex  PARTE  JASPER  PAGE. 
1872.     Supreme  Court  of  Missouri.     49  Mo.  291. 

Wagner,  Judge,  delivered  the  opinion  of  the  court. 

It  appears  from  the  record  submitted  to  this  court  that  the 
petitioner  was  indicted  in  the  Osage  Circuit  Court  for  the  crime 
of  grand  larceny,  that  he  confessed  his  guilt,  and  that  the  court 
sentenced  him  to  ten  years'  imprisonment  in  the  penitentiary.  He 
has  already  served  out  four  years  of  that  time  for  which  he  was 
sentenced,  and  he  now  asks  to  be  discharged  on  the  ground  that 
his  sentence  was  illegal. 

The  statute  provides  that  persons  convicted  of  grand  larceny 
shall  be  punished  as  follows : — "First,  stealing  a  horse,  mare,  geld- 


758  EX    FARTIi:    JASPER    PAGE.  §    3 

ing,  colt,  filler,  mule  or  ass,  by  imprisonment  in  the  penitentiary 
not  exceeding-  seven  years;  second,  in  all  other  cases  of  grand 
larceny,  by  like  imprisonment,  not  exceeding  five  years."  (Wagn. 
Stat.  457,  sec,  26.)  In  no  case,  therefore,  does  the  statute,  authorize, 
for  any  of  the  offences  which  constitute  grand  larceny,  a  sentence 
for  more  than  seven  years'  imprisonment.  Hence  the  judgment 
of  imprisonment  for  ten  years  was  in  violation  of  the  statute  and 
palpably  illegal.  It  would  have  been  reversible  on  writ  of  error 
or  appeal,  as  a  matter  of  course.  Can  this  court  furnish  the  re- 
quired remedy  in  this  proceeding?  The  general  principle  is  that 
on  a  hearing  of  a  writ  of  habeas  corpus,  when  it  appears  that  the 
prisoner  is  detained  by  virtue  of  the  final  judgment  or  decree  of 
any  competent  court  of  civil  or  criminal  jurisdiction,  no  inquiry 
into  the  regularity  of  the  proceedings,  which  resulted  in  the  judg- 
ment can  be  had.  For  all  such  errors  or  irreg^-ilarities  the  law  pro- 
vides other  remedies.  (Wagn.  Stat.  689,  §  33;  Ex  parte  Toney, 
II  Mo.  661;  In  re  Truman,  44  Mo.  181.)  But  the  statute  by  an 
express  enactment  declares  that  when  a  prisoner  is  brought  up 
on  habeas  corpus,  if  it  appear  that  he  is  in  custody  by  virtue  of 
process  from  any  court  legally  constituted,  or  issued  by  an  officer 
in  the  service  of  judicial  proceedings  before  him,  such  prisoner 
can  be  discharged  only  in  one  of  the  following  cases:  "First, 
where  the  jurisdiction  of  such  court  or  officer  has  been  exceeded, 
either  as  to  matter,  place,  sum  or  person."  *  *  *  Sixth,  where 
the  process  is  not  authorized  by  any  judgment,  order  or  decree, 
nor  by  any  provision  of  law.      (Wagn.  Stat.  690,  §  35.) 

It  seems  to  me  that  the  court  in  passing  sentence  exceeded  its 
jurisdiction  in  the  matter,  and  that  it  did  not  act  by  authority 
of  any  provision  of  law.  This  application,  therefore,  I  think  comes 
within  the  meaning  of  the  statute. 

It  has  been  suggested  that  if  the  prisoner  is  not  discharged, 
we  should  reduce  the  term  so  as  to  bring  it  within  the  term 
prescribed  by  statute.  But  we  know  of  no  authority  empowering 
us  to  act  in  proceedings  of  this  kind.  The  statute  makes  it  the 
duty  of  this  court  to  examine  the  record  and  award  a  new  trial, 
reverse  or  affirm  the  judgment  or  decision  of  the  lower  court,  or 
give  such  judgment  as  that  court  ought  to  have  given.  But  that 
provision  in  express  terms  is  confined  to  appeals  or  writs  of  error, 
and  can  have  no  application  in  the  present  case.  We  are  not  aware 
of  any  authority  by  which  we  can  undertake  to  modify  a  criminal 
sentence. 

In  England  the  settled  practice  is  that  where  the  inferior  court 
on  a  valid  indictment  transcends  its  jiowcr  in  passing  sentence, 
by  giving  one  which  the  law  does  not  authorize,  the  superior  or 
appellate  court  will  neither  pass  the  proper  sentence  nor  send  back 
the  record  to  the  court  below,  in  order  tliat  thcv  mav  do  so,  but 


§    3  SCOPE  OF  THE  REMEDY,  759 

that  they  will  reverse  the  judgment  and  discharge  the  prisoner. 
( The  King  v.  Ellis,  5  Barn.  &  Cress.  395  ;  The  King  v.  Bonne,  7 
Ad.  &  Ellis,  58.) 

There  are  numerous  American  cases  where  the  question  has  been 
raised  in  reference  to  the  courts  passing  sentences  not  in  con- 
formity with  law,  but  they  have  all  been  prosecuted  by  writ  of 
error  or  appeal,  and  I  have  been  unable  to  find  anywhere  the  point 
has  been  raised  on  a  petition  for  habeas  corpus. 

In  Ex  parte  Toney,  above  referred  to,  the  court  laid  down  the 
doctrine  that  on  a  petition  for  a  habeas  corpus,  it  would  not  in- 
vestigate the  legality  of  a  conviction,  or  a  judgment  of  a  court  of 
competent  jurisdiction.  The  facts  in  that  case  were  that  a  runaway 
slave  while  going  at  large  and  pretending  to  be  free  man,  com- 
mitted several  larcenies,  for  which  he  was  indicted,  arraigned,  con- 
victed, and  sentenced  to  imprisonment  as  a  free  person.  His  mas- 
ter subsequently  hearing  of  him,  and  ascertaining  that  he  was 
confined  in  the  penitentiary,  made  application  for  his  discharge 
on  a  writ  of  habeas  corpus.  The  court  in  denying  the  writ,  said: 
■'There  is,  then,  the  judgment  of  a  court  of  competent  jurisdiction, 
authorizing  the  confinement  of  the  prisoner,  and  we  cannot  in 
this  collateral  proceeding  question  the  correctness  of  that  judg- 
ment. The  judgment  of  the  court  is,  however,  erroneous,  and 
on  the  facts  assumed  the  party  is  entitled  to  some  remedy.  The 
error  is  one  of  fact.  As  the  record  stands  it  warrants  the  judg- 
ment, and  it  is  an  error  of  fact  which  produces  this  difficulty. 
If  the  prisoner  was  a  slave  and  it  so  appeared  on  the  record,  the 
judgment  would  be  clearly  erroneous.  It  is  settled  that  for  an 
error  of  fact  in  the  proceedings  of  a  court  of  record,  a  writ  of 
error  coram  nobis  will  be  to  revoke  the  judgment,  whether  it  be 
a  court  of  civil  or  criminal  jurisdiction.  (2  Tidd,  1191-2.)  If  a 
judgment  is  rendered  against  an  infant  who  appeared  by  attorney, 
this  is  an  error  of  fact  for  which  a  writ  of  error  coram  nobis  will 
lie.  So  if  a  judgment  is  rendered  against  a  married  woman  who 
is  sued  as  a  feme  sole;  and  so,  it  is  conceived,  of  a  judgment 
sentencing  an  infant  under  sixteen  years  of  age  to  imprisonment 
in  the  penitentiary,  as  our  statute  does  not  permit  such  punishment 
to  be  int^icted  on  him." 

But  in  the  case  just  quoted  it  will  be  perceived  that  the  error 
was  one  of  fact,  provable  by  extrinsic  evidence  de  hors  the  record. 
The  record  as  it  stood  warranted  the  judgment,  and  the  error  of 
fact  produced  the  difficulty.  In  such  a  case  the  court  would  not 
in  a  collateral  proceeding  undertake  to  revise  the  judgment.  But 
in  the  case  we  are  now  considering,  the  question  presented  is  far 
different  The  error  here  does  not  arise  out  of  a  matter  of  fact,  but 
is  patent  on  the  face  of  the  record.  The  record  proper  shows 
that  the  judgment  of  the  court  in  passing  sentence  was  illegal ; 


760  IN     RE    JARVIS.  §    3 

that  it  was  not  simply  erroneous  or  irregular,  but  absolutely  void, 
as  exceeding  the  jurisdiction  of  the  court  and  not  being  the  exer- 
cise of  an  authorit}-  prescribed  by  law. 

I  think,  therefore,  that  the  prisoner  is  illegally  restrained  and 
that  he  is  entitled  to  be  discharged,  and  with  the  concurrence  of 
the  other  judges  it  will  be  so  ordered. 

Lack  of  jurisdiction,  conviction  void. — People  v.  Rawson,  61  Barb.  (N. 
Y.)  619;  Wooldridge,  In  re,  30  Mo.  App.  612;  Jiardy,  Ex  parte,  68  Ala. 
303 :  Crandall,  /;/  re,  34  Wis.  177 ;  Clarke,  Ex  parte,  100  U.  S.  399 ;  Clarke's 
Case,  12  Cush.  (Mass.)  320;  People  v.  Whitson,  74  111.  20;  Bedard,  Ex 
parte,  106  Mo.  616;  O'Brien,  Ex  parte,  127  Mo.  477. 

Excess  of  jurisdiction. — In  California  it  was  held  that  where  a  prisoner 
had  been  sentenced  to  three  years  imprisonment  for  an  offense  to  which 
the  statute  attached  a  maximum  punishment  of  only  six  months,  he  should 
be  discharged  on  habeas  corpus,  at  the  end  of  said  six  months.  Bulger, 
Ex  parte,  60  Cal.  438. 

See  also  Renshaw,  Ex  parte,  6  Mo.  App.  474;  State,  Ex  parte,  87  Ala.  46. 

Mere  errors  or  irregularities,  however,  not  affecting  the  jurisdiction,  will 
not  furnish  sufficient  ground  for  inquiry  on  habeas  corpus;  appeal  or  writ 
of  error  in   such   cases   furnishes   an   adequate   remedy. 


3.     Testing  the  constitutionality  of  a  law. 

In  re  JARVIS. 

1903.     Sur-REMF.  Court  of  Kansas.     66  Kan.  329:  71   Pac.  576. 

Mason,  J. — A  prosecution  was  brought  before  a  justice  of  the 
peace  in  Ness  county,  charging  the  defendant,  W.  A.  Jarvis.  with  a 
violation  of  Chapter  271.  laws  1901  (sec.  3922  to  3929,  Gen.  Stat. 
1901),  commonly  known  as  the  "Peddler's  License  Act."  The  de- 
fendant was  tried,  convicted  and  sentenced.  He  asks  this  court 
to  discharge  him  upon  habeas  corpus  upon  the  ground  that  the  act 
referred  to  is  unconstitutional.  The  states  files  a  motion  to  quash 
the  writ,  and  submits  the  whole  matter  upon  the  motion :  urging 
that,  if  even  if  the  imconstitutionality  of  the  statute  were  conceded, 
the  ])etitioner  could  not  lie  discharged  in  this  proceeding,  under 
the  rule  lately  announced  in  /;/  re  dray,  64  Kan.  850,  68  Pac.  658. 
The  doctrine  of  the  Gray  case,  however,  does  not  extend  to  the 
case  at  bar.  In  that  case  the  petitioner  was  arrested  and  held 
for  trial  under  an  ordinance  which  he  claimed  to  be  imconstitu- 
tional.  This  court  refused  (o  examine  into  nnd  determine  the 
question  so  souglif  to  be  raised  in  advance  of  the  decision  of  the 
court  before  wliich  the  matter  was  pending.  There  the  very  ques- 
tion wbirb  this  court  was  asked  to  decide  was  in  a  fair  way  to 
be  speedily  determined   in   the  lower  court,   and   the  petitioner,   if 


§    3  SCOPE  OF  THE  REMEDY.  76 1 

aggrievcfl  by  the  decision,  had  his  remedy  in  the  course  of  ordi- 
nary judicial  proceedings,  by  appeal.  And  the  court  held  that,  under 
our  statute,  as  the  prisoner  was  held  under  process  issued  upon 
what  was  in  effect,  an  information,  the  statute  did  not  authorize 
an  inquiry  into  the  validity  of  the  custody  upon  habeas  corpus. 
}h\t  in  the  present  case  the  petitioner  has  been  convicted  and  sen- 
tenced and  is  held  upon  a  commitment  issued,  not  upon  an  indict- 
ment, information,  or  complaint,  but  upon  a  final  judgment.  It 
has  been  held  in  many  well  considered  cases,  that  even  after  con- 
viction the  defendant  will  not  be  permitted  to  have  the  constitu- 
tionality of  the  act  under  which  he  is  prosecuted  investigated  upon 
habeas  corpus.  The  argument  is  that  the  judgment  of  the  trial 
court  upholding  the  validity  of  a  statute  unconstitutional  is  not  a 
nullity,  but  binds  the  parties  unless  vacated  upon  direct  attack 
upon  proceedings  in  error.  The  greater  weight  of  authority,  how- 
ever, faz'ors  the  viczv  that  an  unconstitutional  law  is  a  nullity — 
is  no  lazv  at  all — and  that  a  conz'iction  under  it  is  not  merely 
erroneous,  hut  void,  and  subject  to  collateral  attack  upon  habeas 
corpus.  This  view  doubtless  results  more  from  a  jealous  regard 
for  the  personal  liberty  of  the  citizen  taken  than  from  the  force 
of  the  reasoning  employed  as  applied  to  the  other  subjects  of  liti- 
gation. The  authorities  upon  both  sides  of  the  question  are  col- 
lated and  discussed  in  a  note  to  the  case  of  Koepke  v.  Hill  (Ind.) 
87  Am.  St.  Rep.  i6i.  at  pages  174  to  176  (s.  c.  60  N.  E.  1030). 
and  in  a  note  to  Hovey  v.  Elliott,  (N.  Y.)  39  L.  R.  A.  449  at 
pages  450  to  454  (s.  c.  39  N.  E.  841.)  But  this  case  presents  a 
special  feature  of  the  general  question.  The  petitioner  was  con- 
victed in  justice  court,  and  the  time  within  which  he  might  have 
appealed  to  the  district  court  has  gone  by.  Gen.  Stats.  1901,  §  5826. 
He  either  has  a  remedy  by  habeas  corpus  or  he  has  no  remedy 
at  all.  It  may  be  urged  that,  having  lost  the  remedy  by  appeal 
by  permitting  the  time  to  elapse,  he  is  not  in  a  position  to  avail 
himself  of  this  consideration.  In  response  to  this  it  may  be  said, 
however,  that  the  statute  provides  no  appeal,  except  upon  the  giv- 
ing within  twenty-four  hours  of  a  recognizance,  with  sureties,  for 
appearance  at  the  district  court.  In  some  cases  this  might  be 
prohibitive.  Without  at  this  time  passing  upon  the  question  in 
any  other  aspect,  we  decide  that  where  a  defendant  has  been  con- 
victed of  a  misdemeanor,  in  justice  court,  and  no  appeal  has  been 
had,  and  the  tinie  for  an  appeal  has  expired,  he  may  challenge  the 
constitutionality  of  the  statute,  under  wdiich  he  was  convicted,  in 
an  application  to  this  court  for  a  writ  of  habeas  corpus. 

The  petitioner  claims  that  the  statute  in  question  is  unconsti- 
tutional upon  several  grounds,  only  one  of  which  it  will  be  neces- 
sary to  consider.  The  statute  provides  that  it  shall  be  a  misde- 
meanor for  anyone  to  deal  as  a  peddler  without  paying  for  and 


762  EX   PARTE  JOSEPH    .\EET.  §    3 

procuring  a  license  from  the  county  clerk,  but  expressly  exempts 
from  its  operation  the  owner  of  goods,  peddling  them  in  the 
county  in  which  he  is  a  resident  taxpayer,  or  in  any  county  im- 
mediately adjoining  thereto.  The  statute  therefore  attempts  to 
impose  a  tax  upon  non-residents  of  the  state,  from  which  certain 
residents  of  the  state  are  exempted  by  reason  of  such  residence. 
This  is  an  obvious  discrimination  in  favor  of  the  resident,  and 
against  the  non-resident,  and  is  repugnant  to  section  2  of  article 
4  of  the  federal  constitution,  which  provides  that  the  citizens  of 
each  state  shall  be  entitled  to  all  the  privileges  and  immunities  of 
the  citizens  of  the  several  states.  Ward  v.  Maryland,  12  Wall.  418, 
20  L.  Ed.  449 ;  Feicheimer  Bros.  v.  City  of  Louisville,  84  Ky. 
306,  2  S.  W.  65;  Graffty  v.  City  of  Rushville,  107  Ind.  502,  8  N. 
E.  609,  57  Am.  Rep.  128.  The  petitioner  avers  that  he  is  a  citizen 
and  resident  of  the  state  of  Georgia,  and  is  therefore  in  a  position 
to  complain  of  the  discrimination. 

The  motion  to  quash  will  be  overruled,  and  the  petitioner  dis- 
charged.    All  the  justices  concurring. 


Ex   PARTE  JOSEPH   NEET. 
1900.    vSuPREME  Court  of  Missouri.    157  Mo.  527;  57  S.  W.  1025. 

Marshall,  J. — This  is  a  proceeding  by  habeas  corpus,  instituted 
by  the  petitioner,  for  the  purpose  of  obtaining  his  discharge  from 
the  custody  of  the  sheriff  of  Lafayette  county,  and  from  his  im- 
prisonment in  the  county  jail,  where  he  is  held  under  a  warrant 
of  commitment  issued  by  the  criminal  court  of  that  county  upon 
a  conviction  before  that  court  "on  a  charge  of  playing  baseball  on 
Sunday" — the  information  simply  charging  that  the  petitioner  and 
others  therein  named  "on  the  fourth  day  of  June,  1899,  at  the 
county  of  Lafayette,  and  state  of  Missouri,  did  then  and  there 
unlawfully  play  a  game  of  ball,  commonly  called  baseball,  on  the 
first  day  of  the  week,  commonly  called  Sunday,  against  the  peace 
anrl  dignity  of  the  state,  etc."  Among  the  other  persons  charged 
in  the  information  with  having  played  the  game  of  baseball  with 
the  petitioner,  was  one  R.  Vaughn,  who  was  also  convicted.  lie 
appealed  to  the  Kansas  City  Court  of  Appeals,  and  that  court 
(lisinisscd  the  appeal,  on  the  ground  that  an  appeal  would  not  lie 
from  a  conviction  upon  an  information.  (State  v.  Vaughn  3  Mo. 
A  pp.  268.) 

Two  questions  arc  presented  in  this  case,  first,  is  it  tmlawful 
in  .Missouri  to  ])lay  a  game  of  baseball  on  Simday ;  and,  second, 
is  habeas  eorpits  an  available  remedy  to  one  convicted  and  im- 
prisoncfj  for  .so  doing?     "      *     * 


j;    3  SCOl'K  OF   Tllli   REMEDY.  763 

(The  court  concluded,  with  res])ect  to  the  first  question,  "that 
there  is  no  law  in  this  state  which  prevents  playing  a  game  of  base- 
ball on  Sunday,  and  therefore  this  defendant,  is  imprisoned  for 
an  act  which  is  not  unlawful,  and  therefore  the  imprisonment  is 
wrongful.") 

The  only  remaining  question  is,  whether  habeas  corpus  is  the 
proper  remedy. 

The  rule  must  now  be  regarded  as  settled  in  this  state  that  if  a 
person  is  imprisoned  for  an  act  ivhich  is  not  in  contravention  of 
any  existing  laiv,  or  if  the  act  under  which  he  is  held  is  uncon- 
stitutional, habeas  corpus  is  the  proper  remedy  to  restore  to  him  his 
freedom,  of  zvhich  he  has  been  improperly  and  illegally  deprived. 
{Ex  parte  Slater,  72  Mo.  102;  Ex  parte  Arnold,  128  Mo.  256;  Ex 
parte  O'Brien,  127  Mo.  477;  Ex  parte  Craig,  130  Mo.  590;  Ex  parte 
Smith,  135  Mo.  223.) 

The  underlying  reason  is  that  an  unconstitutional  act  is  no  law 
at  all,  and  that  no  court  has  the  right  to  imprison  a  citizen  who  has 
violated  no  law  of  the  state,  but  that  such  act,  even  if  done  by  a 
court  under  the  guise  and  form  of  law,  is  as  subversive  of  the 
right  of  the  citizen  as  if  it  was  done  by  a  person  not  clothed  with 
authority,  and  hence  it  is  the  duty  of  this  court,  under  section  3  of 
article  6  of  the  constitution,  to  discharge  him  by  means  of  the 
w'rit  of  habeas  corpus.  This,  too,  irrespective  of  any  other  relief 
which  may  be  available  to  him.  For  it  is  the  very  purpose  of  this  writ 
to  restore  freedom  to  those  who  have  been  deprived  of  it  without 
warrant  or  authority  of  law.  Of  course  it  Vv'ill  be  understood  that 
habeas  corpus  will  not  be  allowed  to  perform  the  functions  of  a 
writ  of  error  or  appeal,  but  wall  only  lie  where  the  imprisonment  is 
absolutely  without  authority  of  law  or  for  an  offense  which  has 
not  been  made  an  offense  against  the  law,  or  where  the  act  under 
which  he  is  imprisoned  is  unconstitutional,  and  therefore  it  is  no 
law  at  all.  This  is  the  plain  meaning  of  sections  5375  and  5378, 
Revised  Statutes  1889. 

For  these  reasons  the  petitioner  is  discharged  from  custody  as 
prayed.  All  concur  as  to  first  paragraph,  and  Gant^  C.  J.,  Sherwood 
and  Burgess,  JJ.,  concur,  also,  as  to  second  paragraph;  Robinson^ 
Brace,  and  Valliant,  JJ-,  dissent  as  to  second  paragraph. 

In  accord. — Siebold,  Ex  parte,  100  U.  S.  371 ;  Henderson  v.  Heyward, 
109  Ga.  2>7Z',  Rollins,  Ex  parte,  80  Va.  314;  O'Leary,  Ex  parte,  65  Miss.  80; 
Gribben,  In  re,  5  Okla.  379;  Fisher  v.  McGirr,  i  Gray  (Mass.)  i;  Smith, 
Ex  parte,  135  Mo.  223;  Lucas,  Ex  parte,  160  Mo.  218;  Moore  v.  Wheeler, 
109  Ga.  62;  State  v.  Redmon,  43  Minn.  250;  Jacobs,  lu  re,  98  N.  Y.  98; 
Garza,  Ex  parte,  28  Tex.  App.  381 ;  Hodges,  Ex  parte,  87  Cal.  162 ;  Frazee, 
In  re,  63  Mich.  396;  State  v.  Ray,  63  N.  H.  406;  Burnett,  Ex  parte,  30 
Ala.  461;  Jackson  v.  Boyd,  53  Iowa,  536;  Hauck,  In  re,  70  Mich.  396; 
Doyle,  Petitioner,  16  R.  I.  537. 

The  weight  of  authority  is  undoubtedly  in  favor  of  the  proposition  that 
courts    may   examine   the   constitutionality   of    a    statute   or    ordinance    on 


764  HENRY    D.    RUST    V.    MARY    E.    VANVACTER.  §    3 

liabras  corpus  brought  after  conviction  thereuhder  and,  if  the  same 
is  found  unconstitutional,  discharge  the  prisoner.  In  Missouri,  for  a  long 
time,  no  definite  principle  seems  to  have  been  established.  In  Boenning- 
hausen,  Ex  parte,  91  Mo.  301,  21  Mo.  App.  267;  Mitchell,  Ex  parte,  104 
Mo.  121;  Olden,  Ex  parte,  2>7  Mo.  App.  116;  Harris,  Ex  parte,  47  Mo. 
164;  Bowler,  Ex  parte,  16  Mo.  App.  14,  it  \yas  held  that  the  court  could 
not  undertake  an  inquiry  in  the  constitutionality  of  an  ordinance  or  statute 
on  habeas  corpus;  in  the  following  cases,  however,  such  inquiry  was  made: 
Wooldridge,  In  re,  30  Mo.  App.  612;  Swann,  Ex  parte,  96  Mo.  44;  Mc- 
Donald, In  re,  19  Mo.  App.  370;  Marmaduke,  Ex  parte,  91  Mo.  228;  Thomp- 
son, In  re,  117  Mo.  83;  and  in  Smith,  Ex  parte,  135  Mo.  223,  the  court 
speaking  through  Sherwood,  J.,  declared :  "That  it  may  now  be  regarded 
as  the  established  doctrine  of  this  court  that  it  will  interfere  by  means 
of  the  writ  of  habeas  corpus  to  look  into  and  investigate  the  constitution- 
ality of  a  statute  or  ordinance  on  which  a  judgment  which  results  in  the 
imprisonment   is   founded." 

The  contrary  principle  is  adopted  in  the  following  cases  on  the  ground 
that  to  allow  the  petitioner  to  come  directly  before  the  appellate  tribunal 
on  habeas  corpus  and  therein  to  question  the  constitutionality  of  the  act 
or  ordinance  by  virtue  of  which  he  is  confined,  is  to  permit  this  extraor- 
dinary writ  to  perform  the  ordinary  functions  of  a  writ  of  error  or  ap- 
peal. People  v.  Jonas,  173  111.  316;  Koepke  v.  Hill,  157  Ind.  172;  Piatt 
V.  Harrison,  6  Iowa,  79;  Pikulik,  In  re,  81  Wis.  158;  People  v.  Mallary, 
195  111.  582;  Underwood,  In  re,  30  Mich.  502;  Maguire,  In  re,  114  Mich. 
80;  Fisher,  Ex  parte,  6  Neb.  309. 


Y  4.     Custody  of  children. 

^'        HENRY  D.  RUST  v.  MARY  E.  VANVACTER. 

V  1866.     Supreme  Court  of  Appeals  of  W.  Virginia.     9  W.  Va. 

600. 

(Petitioner  sued  out  the  writ  of  habeas  corpus  to  obtain  the 
custody  of  his  infant  child  which  had  been  placed  in  the  care  of 
respondent,  the  grandmother  of  said  infant,  upon  the  decease  of 
l>etitioner's  wife.  Since  then  petitioner  had  remarried,  owned  a 
house  and  was  engaged  as  a  mechanic  at  good  wages,  sufficient  to 
enable  him  to  support  said  infant.  Respondent  alleged  that  the 
custody  of  said  infant  had  been  committed  to  her  by  its  mother 
on  the  latter's  deathbed,  at  which  time  said  infant  was  about 
five  nwnths  old.  That  she  is  now  nearly  nine  years  old  and  has 
during  all  that  time  been  tenderly  cared  for  and  nurtured  by  said 
respondent  whom  she  looks  upon  as  her  mother. 

Upon  the  trial  of  the  cause,  respondent  excepted  to  certain 
rulings  of  the  court  and  to  the  final  order  delivering  the  said 
child  to  the  custody  of  the  petitioner.  To  said  order  respondent 
nbtnincfl  a  supersedeas  from  the  court  of  appeals,  upon  petition  and 
assignment  of  error.) 

Havmom),  T'resident: —  '^  *  *  This  case  presents  circum- 
stances and  facts  of  great   interest  as  well  as  delicacy,  "involving 


§    3  SCOPE   OF    THE    REMEDY.  765 

legal  rights  and  the  dearest  feelings  of  the  parties."  On  the  one 
hand,  is  the  legal  right  of  the  only  parent  and  his  parental  interest 
and  feelings,  and  on  the  other  hand  the  feelings  and  rights,  such 
as  these  rights  may  be.  of  the  grandmother.  And  again  the  feelings, 
and,  it  may  be,  future  prosperity  and  condition  in  life,  of  the  infant 
child.  In  any  event,  the  decision  of  the  case,  must  cause  pain 
and  perhaps  disappointment.  This  court,  however,  must  perform 
its  duty,  and  administer  and  pronounce  the  law  of  the  case  accord- 
ing to  the  facts.  This  duty,  the  court  will  perform  according 
to  its  understanding. 

The  first  error  assigned  is,  substantially,  that  the  habeas  corpus 
act  in  force  in  this  state,  is  not  intended  to  confer  jurisdiction  upon 
a  judge  in  vacation,  to  relieve  from  private  restraint,  but  is  only 
applicable  to  cases  of  public  restraint. 

Chapter  one  hundred  and  eleven  of  the  code  of  this  state,  has 
been  amended  and  re-enacted.  See  chapter  50,  page  one  hundred 
and  forty-nine  of  the  acts  of  1872  and  1873.  The  first  section 
of  the  chapter  one  hundred  and  eleven,  as  amended  and  re-enacted, 
declares  that  "The  writ  of  habeas  corpus  ad  subjiciendum  shall  be 
granted  forthwith  by  the  supreme  court  of  appeals,  or  any  circuit 
court,  or  any  judge  of  either  court  in  vacation,  or  any  county  court 
of  any  county  in  the  state,  to  any  person  who  shall  apply  for  the 
same  by  petition,  showing  by  affidavit  or  other  evidence,  probable 
cause  to  believe  that  he  is  detained  without  lawful  authority." 
This  section  as  re-enacted,  is  the  same  as  contained  in  the  code 
in  chapter  one  hundred  and  eleven,  except  the  authority  given  to 
the  county  court.  The  writ  of  habeas  corpus  under  our  statute, 
is  not  limited  to  cases  of  detainer  for  criminal  or  supposed  criminal 
matters,  but  applies  to  all  illegal  confinement,  and,  under  it,  the 
petition  for  the  writ  of  habeas  corpus  to  obtain  the  possession 
of  an  infant  child  may  be  in  the  name  of  the  father  claiming 
the  possession  of  the  child.  Armstrong  v.  Stone  and  wife,  Q 
Gratt.  R.  102,  399;  Commonwealth  v.  Hamilton,  6  Mass.  273;  The 
People  V.  Mercein,  3  Hill  (N.  Y.)  This  is  not  a  contest  for  the 
guardianship  of  the  child,  and  if  it  were,  it  seems  it  could  not  be 
deternnned  in  this  form  O'f  proceeding.  Id.  105  and  106 ;  Hurd  on 
Habeas  Corpus,  457.  "The  term  imprisonment  usually  imports 
a  restraint  contrary  to  the  wishes  of  the  prisoner ;  and  the  writ  of 
habeas  corpus  was  designed  as  a  remedy  for  him.  to  be  invoked 
at  his  instance  to  set  him  at  liberty,  not  to  change  his  keeper. 
But  in  the  case  of  infants,  the  illegal  custody  has  been  treated, 
at  least,  for  the  purpose  of  allozmng  the  urit  to  issue  as  equii'alcut 
to  imprisonment ;  and  the  duty  of  returning  to  such  custody,  as 
equivalent  to  a  wish  to  be  free."  Hurd  on  Hab.  454.  In  the  case 
in  9  Grattan,  before  cited,  Judge  Allen,  in  delivering  the  opinion 
of  the  court,  at  page   106,  says: — "Whilst  it  is  undoubtedly  true, 


766  HENRY   D.    RUST   V.    MARY    E.   VANVACTER.  '         §    3 

that  the  proper  office  of  the  writ  is  to  release  from  illegal  restraint, 
and  where  the  party  is  of  years  of  discretion  and  sui  juris,  nothing 
more  is  done  than  to  discharge  him ;  yet,  if  he  be  not  of  age  to  deter- 
mine for  himself,  the  court  or  judge  must  decide  for  him,  and  make 
an  order  for  his  being  placed  in  the  proper  custody.  And  to  enable 
it  to  do  so,  must  detennine  to  whom  the  right  to  the  custody  be- 
lon.o-s.  The  custody  of  the  minor  will  be  assigned  to  the  person 
having  the  right,  unless  it  appeared  he  was  an  improper  person  to 
take  it.  The  first  error  assigned  is  not  well  taken  and  is  over- 
ruled. 

The  second  error  assigned,  is  that  the  petition  is  bad  on  de- 
murrer. The  child  in  this  case  being  so  young,  only  between  eight 
and  nine  years  of  age,  I  do  not  think  it  was  necessary  to  allege 
in  the  petition,  in  express  terms,  that  she  was  detained  against 
her  will.  The  petition  shows  on  its  face,  a  legal  right  to  the  custod\- 
of  child,  and  the  detention  of  the  child  from  the  father  in  violation 
of  that  right.  The  facts  stated,  in  the  petition  it  seems  to  me,  are 
sufficient  to  justify  the  issuing  of  the  writ.  It  seems  to  me  that  it 
is  not  regular  or  proper  to  demur  to  the  petition ;  but  that  the 
proper  course  to  pursue,  ordinarily,  is  to  produce  the  child  or 
prisoner;  make  return,  and  then  move  to  quash  the  writ,  if  it  were 
issued  without  sufficient  cause.  But  the  language  employed  in  our 
statute  is,  "who  shall  apply  for  the  same  by  petition,  showing,  by  af- 
fidavit or  other  evidence,  probable  cause  to  believe  that  he  is  detained 
without  lawful  authority."  The  petition,  then  is  not  always  to  be 
looked  to  exclusively,  to  ascertain  if  the  child  or  prisoner  is  detained 
without  lawful  authority.  The  words  of  the  statute  providing  so 
great  and  efficacious  remedy  for  an  illegal  confinement,  should  be 
construed  literally.  The  second  assignment  of  error  is  not  well 
taken  and  is  overruled. 

The  third  assignment  of  error  is,  that  this  proceeding  is  not  in- 
tended or  adapted  to  the  determination  of  any  question  involving 
the  existence  or  continuation  of  a  contract,  or  the  establishment  of 
any  collateral  right,  such  as  is  involved  in  this  case.  In  Ruddle's 
excr.  V.  Ben,  lo  Leigh  467,  Judge  Parker  in  delivering  the  opinion 
of  the  court  at  page  476,  says: — 'Tt  often  happens  that  a  judge  is 
forced  to  decide  the  most  embarrassing  and  delicate  questions  on 
the  return  of  that  writ.  The  writ  itself  applies  to  all  cases  of  the 
illegal  detention  of  the  person,  except  that  which  grows  out  of 
the  relation  of  master  and  slave :  and  it  would  apply  to  that  also, 
but  another  remedy  is  provided  which  seems  entirely  to  preclude 
a  resort  to  the  habeas  cnrf>us."  "The  power  of  a  judge,  or  other 
oflFircr.  in  vacation,  in  respect  to  the  custody  of  infants,  when  the 
juris(]ictir)n  unrlcr  the  writ  is  conferred  in  general  terms,  and 
witliDiit  ])articular  qualifications;  is  the  same  as  that  of  a  court  of 
general   jurisdiction    in   term,    when    acting   tmdor  the   writ  alone. 


§    3  SCOPE  OF    rilE   REMEDY.  767 

The  powers  of  a  judge  or  court  of  law,  are  the  same  as  that  of 
a  court  of  equity  under  the  writ.  It  has,  sometimes,  been  supposed 
that  a  chancellor  or  a  court  of  equity,  possessed  ampler  powers,  under 
the  writ  of  Jiabcas  corpus,  than  a  judge  or  court  of  law,  could 
exercise.  But  this  is  a  mistake.  The  jurisdiction  in  such  cases, 
and  the  powers  wider  the  writ  are  "exactly  the  same."  Crawler's 
case.  2  Swanst.  79;  Lyons  v.  Blenheim,  Jac.  245,  n. ;  Matter  of 
Wollenscraft,  4  Johns.  C.  R.  80;  Hurd,  456,  457."  The  grounds 
upon  which  courts  of  equity  proceed  in  questions  of  parental  cus- 
tody are  more  numerous,  and  sometimes  of  a  different  character 
from  those  upon  which  orders  in  habeas  corpus  are  founded.  Hurd, 
457.  "The  jurisdiction  of  the  court  or  judge,  to  determine  who 
has  the  right  to  the  custody  of  the  minor  upon  a  habeas  corpus, 
has  been  uniformly  affirmed."  King  v.  Delavel,  3  Burn.  R.  1434; 
King  V.  Greenhill,  3  Eng.  C.  L.  R.  153;  9  Grat.  106,  107, 

I  don't  think  there  is  any  contract,  or  fact,  disclosed  in  this  case 
to  prevent  the  judge  from  deciding  and  disposing  of  the  custody 
of  the  child.  People  v.  Mercein,  3  Hill.  309;  State  (Herrick  re- 
lator) V.  Richardson,  40  N.  H.  272 ;  State  Ex  rel.  John  Mayne  v. 
Henry  Baldwin,  5  N.  J.  Eq.  R.  454,  455.  The  third  error  is  not 
well  taken  and  is  overruled. 

The  fourth  error  assigned  is,  that  the  judge  erred  on  the  merits.y 
and  also  in  not  reqiuring  the  bond  asked  for. 

The  fifth  error  assigned  is,  that  the  child  on  the  day  of  the  carder 
remanding  her  to  the  custody  of  the  father,  Jacked  but  four  rrionths 
and  ten  days  of  being  nine  years  of  age,  and  the  judg6  should 
have  relieved  the  child  of  restraint,  if  any  existed,  and  should  not 
have  ordered  her  into  the  custody  of  her  father  against  her  will. 

The  sixth,  that  the  welfare  of  the  child  should  have  been  the 
paramount  consideration,  and,  in  this  case,  she  should  not  have 
been   subjected  to   depressing   influences. 

The  seventh  error  assigned  is,  that  "The  petition  of  Rust  was 
not  simply  to  enforce  his  legal  right  of  custody,  but  for  equitable 
relief.  The  judge  should,  therefore,  have  remitted  him  to  a  court, 
w^hich  could  administer  equity.  These  four  last  assignments  of 
error  I  will  consider  together. 

I  think  there  is  doubt  whether  the  third  section  of  act  of  1873, 
as  to  the  bond,  was  intended  to  apply  to  a  case  like  this,  but  that, 
if  it  does,  it  is  a  matter  intended  to  be  left  in  the  discretion  of 
the  court,  or  judge,  as  to  whether  the  bond  should  be  required  or  not, 
and  may  not  be  demanded  by  the  person  to  whom  the  writ  is  directed, 
as  a  legal  right.  At  all  events,  the  refusing  to  require  the  bond 
asked,  is  not  sufficient  to  authorize  this  court  to  reverse  the  order, 
and  judgment  of  the  judge  in  this  case.  The  father  is  the  natural 
guardian  of  his  infant  children,  and  in  the  absence  of  good  and 
sufficient  reasons  shown  to  the  court  or  judge,  such  as  ill  usage. 


768  PIF.NRV   D.    RUST   V.    MARY    E.   VANVACTER.  §    3 

grossly  immoral  principles  or  habits,  want  of  ability,  etc.,  is  entitled 
to  their  custody,  care  and  education.  It  seems  that  all  the  authorities 
concur  on  this  point.  9  Grat.  106,  107,  108;  3  Hill.  (N.  Y.) 
399;  40  N.  H.  272;  I  Strange,  579;  2  Ld.  Raym.  1334;  3  Burr. 
1436;  5  East  221;  9  J.  B.  Moore,  278;  10  Ves.  51;  12  id.  492; 
2  Russell,  I  Jacob  245;  and  notes  to  the  case;  4  Cond.  Ch.  115; 
2  Simon,  35  ;  2  Cond.  Ch.  299 ;  8  Johns.  328 ;  2  Kent's  Com.  220 
and  194;  I  Dow.  N.  S.  152;  2  Fenbl.  232  (N)  ;  2  Bro.  C.  C.  iDi  ; 
Blesset's  case,  Lefft.  74;  8  E.v  parte  McClellan,  i  Dow.  P.  C.  81  ; 
2  Cox,  242;  Commonwealth  v.  Briggs,  16  Pick.  205;  The  People 
e.v  rel.  J.  Xickerson,  v.  — ,  19  Wend.  14. 

The  custody  of  the  minor  will  be  assigned  to  the  person  having 
the  right,  unless  it  appears  he  is  an  improper  person  to  take  it. 
-•Vnd  when  such  person  has  not  the  custody,  and  is  seeking  to  be 
restored  to  it,  the  court  will  exercise  its  discretion  according  to  the 
facts,  consulting  the  wishes  of  the  minor,  if  of  years  of  discretion ; 
if  not,  exercising  its  own  judgment  as  to  what  will  be  best  calcu- 
lated to  promote  the  interests  of  the  child,  having  due  regard  to 
the  legal  rights  of  the  party  claiming  the  custody.  9  Grat.  106,  107 ; 
4  Ad.  &  El.  624.  The  child  in  this  case,  is  not  nine  years  old, 
or  rather  \vas  not,  when  the  judge  made  the  order  in  question. 
In  the  case  In  re  Preston,  5  Dewl.  &  L.  247,  Patterson,  J.. 
said: — "In  deciding  this  question  it  seems  to  me,  it  is  altogether 
useless  to  question  the  child,  as  to  with  whom  he  might  wish  to  be. 
It  is  difficult  to  say  at  what  age  a  child  is  capable  of  exercising 
a  sound  discretion  and  judging  for  itself  in  matters  of  this  kind; 
but  it  seems  to  me  that  it  is  but  mockery  to  ask  a  child  of  nine 
years  of  age  whether  he  would  sooner  remain  with  a  person  who 
has  brought  him  up,  or  go  with  a  stranger." 

In  Rex  V.  Johnson,  i  Str.  579,  the  infant  was  nine  years  old,  the 
court  said : — "This  being  the  case  of  a  young  child,  who  had  no 
judgment  of  her  own.  they  ought  to  deliver  her  to  her  guardian." 
In  the  case  of  State  (Herrick.  relator),  v.  Richardson,  40  N.  H.  272. 
it  was  held  that  the  action  of  the  court  should  not  be  held  by  the 
wishes  of  a  child  ten  years  of  age.  In  this  state,  infants  are 
not  permitted  to  choose  their  guardians  mitil  they  are  fotu-teen  years 
years  of  age.  The  law  in  this  res])ect  luust  be  founded  upon  the  pre- 
sumption that  infants,  i)rior  to  that  age,  are  incompetent  to  make 
a  proper  or  judicial  selection.  It  does  not  appear  that  the  child 
in  this  case,  had  ever  been  sent  to  school,  or  received  any  education, 
and  it  seems  to  me  that  considering  her  tender  years,  and  all  the 
circumstances,  she  is  too  young  to  decide  for  herself  into  whose 
custody  she  should  go.  or  be  placed,  and  that  it  is  the  duty  of  the 
court  U)  determine  to  whom  the  custody  belongs.  The  seventh 
section  f)f  chapter  149,  of  the  acts  of  the  legislature  of  1872  and 
^^7?>'   l>rovidcs   that    "I^vcry   guarflinn    who    shall    be   ajipointed    as 


§    3  SCOPE   OF   THE    REMEDY.  769 

aforesaid,  and  give  bond  when  it  is  required,  shall  have  the  custody 
of  his  ward,  and  the  possession,  care  and  management  of  his  estate, 
real  and  personal,  and  out  of  the  pro.ceeds  of  such  estate,  shall 
provide  for  his  maintenance  and  education;  but  the  father  of  the 
minor,  if  living,  and  in  case  of  his  death,  the  mother,  if  fit  for  the 
trust,  shall  be  entitled  to  the  custody  of  the  person  of  the  minor, 
and  to  the  care  of  his  education."  Whatever  may  be  the  rule 
at  common  law,  with  us,  the  return  of  the  person  to  whom  the 
writ  is  directed,  is  not  conclusive,  for  the  language  of  the  law 
is  "That  the  court  or  judge  after  hearing  the  matter,  both  upon 
the  return  and  any  other  evidence,  shall,"  etc.,  6  section  of  Ch.  60,  p. 
150,  acts  of  1872  and  1873.  The  return,  therefore,  may  be  con- 
tradicted, in  whole  or  in  part,  by  other  evidence  in  this  proceed- 
ing. 

In  the  case  of  the  State  ex  rcl.  John  Mayne,  v.  Henry  Baldwin, 
5  N.  J.  Eq.  R.,  by  Halstead,  page  454,  it  was  decided  that  an 
infant  daughter  should  be  delivered,  to  her  father,  though  he  had 
verbally  committed  her  to  the  care  and  custody  of  the  respondent 
until  she  should  attain  the  age  of  twenty-one  years,  and  the  respon- 
dent had  adopted  her  accordingly.  See  also,  40  N.  H.  279,  and 
cases  there  cited,  touching  the  same  subject,  and  also  In  re  Boreman, 
16  Eng.  Law  &  Eq.  221,  also  Johnson  v.  Terry,  34  Conn.  259. 
There  seem  to  be  other  cases  holding  otherwise.  Hurd.  528,  537, 
539,  540.  I  do  not,  however,  now  definitely  determine  that  question, 
as  I  deem  it  unnecessary  in  this  case.  I  do  not  think  that  the  evi- 
dence in  this  case  shows  that  the  petitioner  has  waived,  or  aban- 
doned, or  intended  to  waive  or  abandon,  his  parental  rights,  by 
permitting  his  child  to  remain  with  its  grandmother,  so  long,  or  that 
he  ever  transferred,  or  intended  to  pass  his  parental  rights  to  his 
child  to  respondent,  so  as  to  deprive  him  of  his  legal  right  to  retain 
it.  The  evidence  is,  to  some  extent,  contradictory,  and  as  witnesses 
were  personally  before  the  judge,  more  consideration  must  be  given 
to  his  judgment  so  far  as  the  credibility  of  witnesses  who  testified 
before  him,  are  concerned,  than  if  the  case  had  been  decided 
altogether  upon  the  return  and  affidavits,  or  depositions,  for  obvious 
reasons.  I  do  not  think  the  objection  to  the  conclusion  of  the  peti- 
tion is  tenable.  In  so  far  as  it  is  inapplicable  to  the  petition  for  the 
writ,  it  might  properly  be  regarded  as  surplusage.  I  am  unable 
to  see  what  relief  a  court  of  equity  could  give  upon  the  facts 
stated  in  the  petition  and  the  prayer.  See  upon  this  subject, 
Hurd,  458,  459,  460,  461.  I  see  no  objection  to  the  judge  ordering 
such  relief  upon  the  petition  as  is  authorized  by  the  law  in  such  case ; 
and,  of  course,  any  relief  prayed  for,  which  the  court  or  judge 
is  not  authorized  to  grant,  would  be  disregarded.  But  some  courts 
and  judges  have  determined  such  cases  upon  equitable  principles, 
to  some  extent,  and  granted  relief  bv  changing  the  custodv  of  the 


^ 


770  QUEEN   V.    MARIA   CLARKE.  §    3 

child  with  terms  deemed  equitable  and  just.  In  the  case  of  the 
Commonwealth  v.  Biggs,  i6  Pick.  203,  Chief  Justice  Shaw  says  at 
page  205,  "And  the  court  will  feel  bound  to  restore  the  custody 
where  the  law  has  placed  it,  with  the  father,  unless  in  a  clear  and 
strong  case  of  unfitness  on  his  part  to  have  such  custody."  Finally, 
I  do  not  feel  authorized  under  the  circumstances,  to  decide  that 
the  judge  has  abused  the  writ  in  this  case. 

Upon  the  principles  of  the  case  in  9  Grattan  and  40  New  Hamp- 
shire, which  have  been  cited  and  referred  to,  and  other  cases  similar 
in  important  respects,  looking  to  the  interest  of  the  child,  the  legal 
rights  of  the  parent,  and  the  circumstances  of  the  case  in  other 
respects,  I  do  not  feel  that  this  court  is  authorized  to  reverse  the 
final  order  and  judgment  of  the  judge  made  in  this  case,  but 
the  same  is  affirmed  with  costs  and  $30  damages  to  Henry  D. 
Rust,  the  defendant  in  error,  against  Mary  E.  Vanvacter,  the 
plaintiff  in  error. 

The  other  judges  concurred. 

Judgment  affirmed. 


\i         QUEEN    v.    MARIA    CLARKE.     In    re   ALICIA    RACE. 
1857.     Court  of  Queen's  Bench.     7  Ellis  &  Blackburn  185. 

A  writ  of  habeas  corpus  ad  subjiciendum,  returnable  at  cham- 
bers, to  bring  up  the  body  of  Alicia  Race,  an  infant,  issued  by  order 
of  Coleridge,  J.,  on  second  of  January,  1857,  at  the  instance  of 
Alicia  Race,  the  mother  of  the  infant.  It  was  addressed  to 
Maria  Clarke.  The  return  was,  that  the  child  was  placed  under 
the  care  of  Miss  Clarke  by  the  commissioners  of  the  Royal  Patriotic 
Fund ;  and  that  she  did  not  detain,  and  never  had  detained,  the 
child  against  its  will.  Crompton,  J.,  at  chambers,  referred  the  matter 
to  the  full  court.     *     *     '" 

(The  infant  in  question  was  between  the  age  of  ten  and  eleven. 
Petitioner,  the  mother,  sought  to  obtain  custody  of  said  child,  in 
order  to  educate  it  in  the  Roman  Catholic  faith,  to  which  the  mother 
bclr)nged.     Further  facts  appear  in  the  opinion.) 

Lord  Campbell,  C.  J.,  now  delivered  judgment. 

In  this  case  we  are  to  determine  what  directions  ought  to  be 
given  by  the  court  respecting  Alicia  Race,  an  infant  of  the  age 
of  ten  years  and  a  few  months,  brought  up  under  a  writ  of  habeas 
corpus,  granted  at  the  instance  of  her  mother.  On  the  one  side 
it  is  contended  that  we  ought  at  once  to  order  the  child  to  be  de- 
livered to  her  mother ;  and,  on  the  other  that  we  should  ask  the 
child  to  make  her  election,  whether  to  go  home  with  her  mother 
or  to  return  to  school  from  which  her  mother  wishes  to  remove  her. 


§    3  SCOPE  OF  THE  REMEDY.  77 1 

It  is  not  disputed  that,  the  father  being  dead  without  appointing  a 
guardian,  the  mother  is  now  guardian  for  nurture ;  and  it  is  laid 
down,  Ratcliff's  case,  3  Rep.  37.  a,  38  b,  that  guardianship  for 
nuture,  continues  until  the  child  attains  the  age  of  fourteen.  And 
observations  were  made  that  the  commissioners  of  the  school  are  in 
loco  parentis;  but  this  was  little  relied  upon  and  is  wholly  untenable. 
As  a  general  rule  it  is  admitted  that,  if  a  child  under  the  age  of 
seven  years  is  so  brought  up,  the  court  ought  at  once  order  the 
child  to  be  delivered  to  the  guardian.  But  the  contention  is  that, 
between  the  ages  of  seven  and  fourteen,  that  the  court  ought  to 
examine  the  child  and  see  whether  it  has  sufficient  mental  capacity 
to  be  competent  to  make  a  choice,  and,  according  to  the  degree  of 
mental  capacity  which  it  is  found  to  possess,  to  hand  it  over  to  the 
guardian,  or  to  liberate  it  and  to  desire  it  to  go  where  it  pleases. 
With  regard  to  the  maintenance  of  the  poor,  a  rule  has  been  in- 
troduced, that  while  a  child  is  under  seven  it  shall  not  be  separated 
from  the  mother  for  the  purpose  of  being  maintained  by  the  parish 
in  which  it  is  settled.  Again,  by  Sergeant  Talfourd's  Act  (2  &  3 
Vict.  c.  54,  s.  i),  it  is  enacted  that,  where  infants  under  the  age  of 
seven  years  are  in  the  sole  custody  or  control  of  the  father,  the  lord 
chancellor  or  the  master  of  the  rolls  may  make  an  order  that  such  in- 
fants may  be  delivered  to  and  remain  in  the  custody  of  the  mother  un- 
til they  attain  the  age  of  seven  years.  Under  seven  is  sometimes 
called  the  age  of  nurture ;  but  this  is  the  peculiar  nurture  required 
by  a  child  from  its  mother,  and  is  entirely  different  from  guardian- 
ship for  nurture,  which  belongs  to  the  father  in  his  lifetime,  even 
from  the  birth  of  the  child.  We  can  find  no  distinctions  in  the 
books  as  to  the  rights  and  incidents  of  this  species  of  guardianship 
from  the  time  when  it  commences  until  the  time  when  it  expires.  One 
of  these  incidents  is  that  the  guardian  shall  be  entitled  to  the 
custody  of  the  person  of  the  child.  Without  such  right  he  could 
not  possibly  perform  the  duties  cast  upon  him  as  guardian.  He 
is  to  nurture  the  child ;  the  legal  sense  of  this  word  is  its  natural  and 
common  sense  in  the  English  language,  which  Dr.  Johnson  says, 
"is  to  educate,  to  train ;  to  bring  up."  Accordingly,  from  the  case 
to  be  found  in  the  Year  Book  (Mich.  8  Ed.  4,  fol.  7  B.  ph.  2.)  to  the 
present  time,  it  has  ever  been  considered  that  the  father,  or  whoever 
else  on  his  death  may  be  the  guardian  for  nurture,  has  by  law  a  right 
to  the  custody  of  the  child,  and  shall  maintain  an  action  of  trespass 
against  a  stranger  who  takes  the  child.  See  the  authorities.  Com. 
Dig.  Guardian  (D.) 

The  question  then  arises,  whether  a  habeas  corpus  be  the  proper 
remedy  for  the  guardian  to  recover  the  custody  of  the  child,  of 
which  he  has  been  improperly  deprived.  Certainly  the  great  use 
of  this  writ,  the  boast  of  English  jurisprudence,  is  to  set  at 
liberty  any  of  the   Queen's   subjects   unlawfully   imprisoned ;   and. 


•jyT.  QUEEN   V.    MARIA   CLARKE.  ■  §    3 

when  an  adult  is  brought  up  under  a  habeas  corpus,  and  found  to  be 
unlawfully  imprisoned,  he  is  to  have  his  unfettered  choice  to  go 
where  he  pleases.     But,  with  respect  to  a  child  under  guardianship 
for   nurture,   the    child    is    supposed   to   be    unlawfully    imprisoned 
when  unlawfully  detained  from  the  custody  of  the  guardian;  and 
when  delivered  to  him  the  child  is  supposed  to  be  set  at  liberty. 
Rex  V.   De   "Mandeville,   5   East  221,   clearly  proves   that  such   is 
the  fit  mode  of  proceeding  if  the  child  is  under  seven.     Is  there 
anv   reason   for   following   a   different   course   between    seven   and 
fourteen?      The    intellectual    faculties    of   the    child    may   be    con- 
siderably  developed   during  this   period ;   and   the   child   may   now 
have  a  very  strong  inclination  to  leave  the  home  of  the  guardian, 
and  from  religious,  as  well  as  frivolous  motives,  to  be  educated  at 
a  different  school  from  that  which  the  guardian  has  selected.     But 
the  consequences  which  would  follow  from  allowing  such  a  choice 
are  most  alarming.     We  must  lay  down  a  rule  which  will  be  gen- 
erall}'    beneficial,    although    it    may    operate    harshly    in    particular 
instances.      If  the   proposed   choice   were   given  to   the   child,   the 
relation  of  guardian  and  ward  would   still   subsist ;   the   guardian 
might  retake  the  child  wherever  he  finds  it;  and  he  might  maintain 
an  action   against  the  person  who,   contrary  to   his   wishes,   takes 
or  detains  the  child.     Then,  how  could  nurture  be  carried  on  with 
such  a  doctrine,  which,  if  established,  would  apply  to  every  father 
of  a  family,  in  the  kingdom,  in   respect  of  all  his  children,   male 
and  female,  above  the  age  of  seven  years?     If  a  father  wishes  to 
take  his  son  when  ten  years  of  age  from  a  private  school  where 
flogging  is  not  practiced,  and  send  him  to  Eton,  and  the  boy  re- 
fuses to  come  home,  and  is  brought  up  by  habeas  corpus,  is  he  to  be 
permitted  to  say  that,  on  consideration,  he  is  of  the  opinion  that 
the  private  school  is  preferable  to  any  public  school  where  flogging 
is  permitted,  and  therefore,  he  makes  his  choice  to  return  to  the  pri- 
vate school,  the  master  being  willing  to  receive  him?     Or  suppose 
that  a  Protestant  mother,  guardian  for  nurture  of  a  child  of  seven 
Acars  of  age,  sends  her  to  a  boarding  school  professing  to  be  a 
Protestant  school ;  in  a  short  time  she  finds  that  attempts  have  been 
successfully  made  by  teachers  there  to  convert  the  girl  to  the  Roman 
Cathr)lic  faith  ;  the  girl  refuses  to  come  home,  saying  in  analogy 
to  the  language  used  by  Alicia  Race,  "I  will  not  go  home  to  my 
own  mother ;  I  will  stay  here  where  T  may  pray  to  the  mother  of 
God  ;"  she  is  in  conscf|ucnce  brought  up  by  habeas  corpus.     Are  we 
to  examine  her,  and,  finding  her  of  quick  parts  and  professing  to 
be.  a  sincere  convert  to  the  Roman  Catholic  faith  to  tell  her  that, 
in  spite  of  the  wishes  of  her  mother,  she  is  at  liberty  to  return  to 
the  srhr)ol  where  she  has  been  converted  ?     Such  a  doctrine  seems 
wholly  inconsistent  with  parental  authority,  which  both  reason  and 
revelatif)n  teach  us  to  rcsjKH-t   as  essential    for  the  welfare  of  the 


§    3  SCOPE  OF  THE  REMEDY.  -J"]^ 

human  race.  Indeed,  allusions  were  made  during  the  arguments 
at  the  bar  to  the  workings  of  prcvcnicnt  grace,  and  to  the  words 
of  our  Lord,  "Suffer  little  children,  and  forbid  them  not,  to  come 
unto  me;  for  of  such  is  the  kingdom  of  heaven."  It  must  be 
enough  merely  to  say  that  the  parental  authority  is  in  no  degree 
weakened  by  such  sacred  doctrines  or  precepts ;  for  it  is  impossible, 
without  irreverence,  to  show  more  fully  how  irrelevant  they  are. 
This  suggests  the  extreme  inconvenience  which  would  arise  from 
the  proposed  examination  of  the  child.  If  there  is  to  be  an  exam- 
ination, it  ought  to  be  conducted  before  all  the  judges  who  are  to 
take  part  in  the  adjudication  ;  and  after  testing  her  mental  acumen, 
we  ought  to  ascertain  whether  it  is  upon  due  investigation  that  she 
has  imbibed  a  preference  for  Protestantism  and  such  an  aversion 
to  the  Roman  Catholic  faith. 

When  we  look  into  our  law  books,  although  we  do  not  find 
the  exact  age  defined  within  which  the  court,  on  a  Jtabcas  corpus, 
will  order  the  child  to  be  delivered  up  to  the  parent  or  guardian 
without  examination,  v/e  do  find  cases  where  this  course  has  been 
adopted,  the  child  being  above  seven  years  of  age ;  and  we  find 
nothing  to  indicate  that  the  rights  of  the  guardian  for  nurture  are 
in  any  respect  impaired  during  the  period  of  guardianship.  In 
Rex  V.  Johnson,  i  vStr.  579,  2  Ld.  Raym.  1333,  a  female  child,  nine 
years  "old,  was  brought  up  by  habeas  corpus,  in  the  custody  of  her 
nurse,  having  a  testamentary  guardian  appointed  by  the  father. 
The  court  at  first  doubted  whether  they  should  go  any  farther 
than  to  see  that  the  child  was  not  under  any  illegal  restraint : 
but  afterwards  declared  that,  this  being  the  case  of  a  young  child 
who  had  no  judgment  of  her  own,  they  ought  to  deliver  her 
to  her  guardian,  although  she  was  very  unwilling  to  be  taken 
from  Mrs.  Johnson,  her  nurse,  who  was  her  near  relation  and 
who  had  cared  for  her  tenderly  and  disinterestedly.  It  was  after- 
wards said  in  Rex  v.  Smith,  2  Str.  982,  that  Lord  Raymond,  who 
had  been  a  party  to  this  judgment,  repented  of  what  he  had  done. 
Rut  in  his  own  report  of  the  case,  he  throws  no  discredit  upon  it ; 
and  Lord  Mansfield  afterwards  expressed  strong  approbation  of 
the  case,  and  said,  that  if  Lord  Raymond  had  changed  his  mind, 
his  first  judgment  was  clearly  the  right  one ;  Rex  v.  Delavel,  i  Sir 
W.  Bl.  410,  413.  It  is  unnecessary  to  travel  through  the  cases 
seriatim,  as  they  are  all  reviewed  in  Rex  v.  Greenhill,  4  A.  &  E. 
624,  (E.  C.  L.  R.  vol.  31)  where  the  court  laid  down  the  rule  that, 
zvhere  a  young  person  under  the  age  of  twenty-one  years  is  brought 
before  the  court  by  habeas  corpus,  if  he  be  of  an  age  to  exercise  a 
choice,  the  court  leaves  the  infant  to  elect  zvhere  he  zmll  go,  but, 
if  he  be  not  of  that  age,  the  court  must^make  an  order  for  his  being 
placed  in  the  proper  custody.  Lord  Denman,  Littledale,  J.,  Williams. 
J.,  and  Coleridge,  J.,  all  make  age  the  criterion,  and  not  mental 


774  QUEEx\    V.    MARIA   CLARKE.  §    3 

capacity,  to  be  determined  by  examination.  They  certainly  do  not 
expressly  specify  the  age;  but  they  cannot  refer  to  seven  as  the 
criterion;  and  there  is  no  intervening  age  marking  the  rights  or 
responsibility  of  an  infant  till  fourteen,  when  guardianship  for 
nurture  ceases,  upon  the  supposition  that  the  infant  has  now  reached 
the  age  of  discretion. 

When  we  attend  to  the  authorities  cited  by  the  counsel  for 
the  commissioners,  we  find  some  vague  dicta,  and  even  some  de- 
cisions, which,  at  first  sight,  give  a  color  to  the  doctrine  of  examina- 
tion and  choice  under  fourteen,  but  which  admit  of  an  explanation 
entirely  consistent  wath  the  claim  of  the  guardian.  In  Rex  v. 
Smith,  2  Str.  982,  Rex  v.  Johnson,  i  Str.  579,  2  Ld.  Raym.  1333, 
is  said  to  have  been  overruled,  because  a  boy  who  had  not 
completed  his  fourteenth  year,  being  brought  up  by  habeas  corpus 
at  the  suit  of  the  father,  from  the  custody  of  an  aunt  with  whom 
he  wished  to  live,  was  set  at  liberty  instead  of  being  delivered  up  to 
his  father,  and  was  allowed  to  return  to  his  aunt ;  but  .Lord  Mans- 
field in  commenting  upon  the  case,  gives  the  true  ratio  decidendi, 
upon  which,  and  upon  which  alone,  it  can  be  supported.  That  case 
Avas  determined  right;  "for  the  court  were  certainly  right  in  re- 
fusing to  deliver  the  infant  to  the  father ;  of  whose  design  in  applying 
for  the  custody  of  his  child,  they  had  a  bad  opinion ;"  Rex  v. 
Delavel,  3  Burr.  1434,  1436.  There  is  an  admitted  qualification  on 
the  right  of  the  father  or  guardian,  if  he  be  grossly  immoral,  or 
if  he  wishes  to  have  the  child  for  any  unlawful  purpose. 

The  counsel  for  the  commissioners  relied  much  upon  the  case 
of  In  re  Loyd,  3  M.  &  G.  547  (E.  C.  L.  R.  vol.  42)  where  the 
mother  of  an  illegitimate  child  between  the  age  of  eleven  and 
twelve  years  having  obtained  a  habeas  corpus  directed  to  the 
putative  father  to  bring  it  up,  the  court  refused  to  order  it  to  be 
delivered  to  the  mother,  and  declared  that  it  might  use  its  own  dis- 
cretion ;  and,  the  child,  being  unwilling  to  go  with  the  mother,  the 
court  would  not  allow  the  mother  to  take  it  by  force.  But  Maule, 
J.,  there  asked,  "How  does  the  mother  of  an  illegitimate  child  dififer 
from  a  stranger?"  And,  although  the  relation  of  the  mother  to 
her  illegitimate  child  is  recognized  for  some  purposes,  it  is  clear 
that  she  has  not  over  it  all  the  rights  of  guardian  for  nurture.  From 
what  was  said  by  Lord  Kllcn1)orough  in  Rex  v.  Hopkins,  7  East 
579,  it  would  appear  that  it  is  only  while  an  illegitimate  child 
is  under  the  age  of  seven  years  (an  age  during  which  the  law 
of  nature  and  the  law  of  the  land  both  say  that  the  child,  whether 
legitimate  or  illegitimate,  ought  not  to  be  separated  from  the 
mother),  that  the  courts  will  interfere  to  protect  the  custody  of  the 
mother.  In  In  re  Loyd,  3  M.  &  G.  547,  the  child  was  considerably 
above  that  age.  The  only  other  decision  much  relied  upon  as  to 
ihr-  fi-'lif   of  the  parent  or  guarflian  on  a  Jiabcas  corpus  was  in 


§    3  SCOTE  OF   THE   REMEDY.  775 

/;/  re  Preston,  5  D.  &  L.  233,  where  a  most  distinguished  judge 
refused  to  issue  a  writ  of  habeas  corpus  to  bring  up  a  legitimate 
child,  above  the  age  of  seven,  on  the  alleged  application  of  the 
mother  who  had  become  guardian  for  nurture,  the  father  being  dead. 
Rut  the  application  was  made  under  a  power  of  attorney,  the 
mother  remaining  in  the  East  Indies,  so  that  the  child  could  not 
have  been  delivered  to  her.  The  real  opinion  of  my  brother  Pat- 
terson, upon  this  subject,  we  have  fortunately  an  opportunity  of 
knowing  from  a  note  of  Sir  Erskine  Perry,  late  Chief  Justice  of 
Bombay,  in  a  very  interesting  collection  of  "Oriental  Cases,"  de- 
cided and  published  by  him.  A  Parsee  family  having  detained 
an  infant  from  its  father,  a  Parsee,  on  the  ground  that  the  father 
had  embraced  the  Christian  religion,  on  a  habeas  corpus  the  court 
had  ordered  the  child  to  be  given  up  to  the  father.  In  another 
case,  the  court,  on  habeas  corpus,  had  ordered  a  Hindu  boy,  of 
twelve  years  of  age,  who  professed  to  have  embraced  Christianity, 
to  be  delivered  up  to  his  father,  who  adhered  to  the  Hindu  religion ; 
and  the  judges  refused  to  examine  the  boy  as  to  his  capacity 
and  knowledge  of  the  Christian  religion.  In  similar  cases  the 
Supreme  Court  at  Calcutta  had  followed  a  different  course.  There 
being  no  appeal  in  such  matters  to  a  higher  court,  Sir  Erskine 
Perry,  for  his  subsequent  guidance,  very  properly  submitted  the 
question  to  my  brother  Patterson,  whose  response  was  as  follows : — 
"I  cannot  doubt  that  you  were  quite  right  in  holding  that  ths 
father  was  entitled  to  the  custody  of  the  child,  and  enforcing  it 
by  writ  of  habeas  corpus.  The  general  law  is  clearly  so,  and  even 
after  the  age  of  fourteen;  whereas  this  boy  (Shripat)  was  only 
twelve.  The  right  may  indeed  be  forfeited  by  misconduct  of  a 
very  gross  nature,  but  nothing  of  that  kind  appears  to  have 
been  brought  forward.  It  may  have  been  an  act  of  imprudence 
originally  in  the  father,  to  place  his  boys  with  persons  who  were 
likely  to  bring  them  up  in  religious  faith  and  opinion  contrary 
to  the  father ;  I  suppose  he  made  some  stipulations  for  avoiding 
this ;  but  whether  he  did  or  not,  I  do  not  think  that  the  law  would 
be  affected  thereby.  Even  if  he  had  changed  his  mind  on  that 
subject,  as  well  as  on  the  education  of  his  boys  in  other  respects, 
I  know  of  no  law  which  forbids  him  to  do  so,  or  binds  him  to 
the  arrangement  which  he  had  at  first  made."  For  these  reasons  and 
on  these  authorities,  we  are  of  the  opinion,  in  the  present  case,  that 
prima  facie  the  mother  is  entitled  as  guardian,  for  nurture,  to 
have  her  child  delivered  over  to  her.  Still  she  may  have  forfeited 
her  right  by  prior  immoral  tonditct,  or  proof  that  she  does  not 
make  the  application  bona  Me,  or  by  having  some  illegal  act  in 
view  when  she  has  obtained  the  possession  of  the  child.  According 
to  Rex  V.  Greenhill,  4  A.  &  E.  624,  (E.  C.  L.  R.  vol.  31)  the  im- 
morality, to  extinguish  the  right  o^  the  parent  or  guardian  to  the 


776  QUEEN    V.    MARIA   CLARKE.  §    3 

custody  of  the  child,  must  be  of  a  gross  nature,  so  that  the 
child  would  be  in  serious  danger  of  contamination  by  living  with 
him.  But  here  no  immorality  whatever  is  imputed  to  Mrs.  Race : 
and  she  seems  to  have  been  a  virtuous  woman,  well  deserving  the  ar- 
dent affection  which  her  husband  felt  for  her.  An  attempt  is  made 
to  show  that  in  applying  for  this  writ,  she  is  a  mere  tool  in  the  hands 
of  others.  But.  on  carefully  looking  through  the  affidavits,  we  do 
not  see  that  this  charge  is  at  all  substantiated ;  and  we  think 
that  we  are  bound  to  give  credit  to  what  she  swears  as  to  the 
purity  and  sincerity  of  her  motives.  In  wishing  to  take  her  children 
from  these  Protestant  schools,  she  may  act  conscientiously,  although 
not  prudently ;  and,  when  the  boy  was  allowed  to  go,  she  might  not 
unnaturally  desire  to  have  the  girl  also  that  they  might  be  educated 
together.  The  answer  to  this  application,  if  there  be  any,  we 
think  must  rest  upon  the  ground  that  the  mother  was  under  a  legal 
obligation  to  educate  her  children  in  the  Protestant  faith,  and  that 
she  now  seeks  to  get  possession  of  the  daughter,  with  the  intention 
of  following  a  course  with  her  which  the  law  forbids.  Had  she 
been  a  testamentary  guardian,  and  the  will  had  directed  that  the 
children  should  be  educated  as  Protestants,  we  should  not  have  or- 
dered the  girl  to  be  delivered  up  to  the  guardian — she  intending  to 
send  the  girl  to  a  Roman  Catholic  Seminary.  But  she  is  guardian 
for  nurture,  with  all  the  rights  belonging  to  a  mother  as  the  surviv- 
ing parent.  The  husband  certainly  was  a  Protestant;  his  children 
had  been  baptized  in  the  Anglican  church ;  and  he  probably  expected 
that  they  would  be  brought  up  as  Protestants.  But  his  will  is 
entirely  silent  upon  this  question ;  and,  in  his  most  beautiful  and 
affecting  letter  of  the  25th  of  August,  1854,  (showing  him  to  have 
been  a  model  of  a  Christian  soldier)  he  appears  to  have  had  un- 
bounded confidence  in  her,  and  to  have  left  the  education  of  the 
children  entirely  in  her  discretion.  Indeed,  by  marrying  a  Roman 
Catholic,  and  by  permitting  the  children  in  his  lifetime  to  join  in 
Roman  Catholic  prayers,  he  does  not  seem  to  have  had  the 
horror  of  popery  felt  by  many  pious  Protestants.  Still,  if  the 
proposition  laid  down  can  be  supported,  that  it  was  her  duty  as 
guardian  for  nurture,  from  the  simple  fact  of  the  father  having 
been  a  Protestant,  to  educate  the  children  as  Protestants,  she  would 
be  contemplating  what  the  law  forbids  by  wishing  to  remove  the 
children  from  a  Protestant  to  a  Roman  Catholic  school.  But  no 
sufficient  authority  has  been  cited  in  favor  of  this  proposition ; 
and  the  mother  becoming  the  guardian  for  nurture  on  the  death 
of  the  father,  no  provision  to  the  contrary  being  made  by  will,  she 
appears  to  us  to  have  in  all  respects  the  same  parental  authority 
which  might  have  been  exercised  by  the  father  had  he  survived 
the  mother.  As  the  law  stands,  since  the  repeal  of  the  statutes  for 
rfrsrcuting   Papists,    the   question    must   be   the    same    under   the 


§    3  SCOPE   OF   THE   REMEDY.  'JJJ 

actual  circumstances  of  this  case  as  if  the  father  had  died  a  Roman 
Catholic,  and  the  mother  surviving  had  heen  a  Protestant ;  would  it, 
in  that  case,  have  heen  unlawful  for  the  mother  to  have  brought  up 
the  children  as  Protestants?  The  cases  of  \^illareal  v.  Mellish, 
2  Swanst.  533,  and  Talbot  v.  Earl  of  Shrewsbury,  4  ■\Iyl.  &  Cr.  672, 
show  that  in  such  matters  the  courts  know  of  no  such  distinction 
between  different  religions,  and  will  not  interfere  with  the  discre- 
tion of  guardians  as  to  the  faith  in  which  they  educate  their 
wards.  The  authority  relied  upon  to  show,  that  the  ward  must 
invariably  be  educated  in  the  faith  of  the  father,  is  In  re  Arabella 
Frances  North,  11  Jurist  7,  before  Vice  Chancellor  Knight  Bruce. 
That  case  arising  jointly  on  a  return  to  a  habeas  corpus,  and  on  a 
petition  for  the  appointment  of  a  guardian  to  children  as  wards  of 
the  Court  of  Chancery,  it  is  difficult  to  distinguish  what  was  done 
or  said  by  the  vice  chancellor  as  a  common  law  and  an  equity 
judge.  He  cannot  be  alleged  to  have  decided  anvthing  upon  this 
point ;  and  he  had  only  to  consider  it  with  a  view  to  determining 
whether  the  children  should  for  a  few  days,  till  a  guardian  was 
appointed,  be  in  custody  of  a  Roman  Catholic  or  a  Protestant 
nurse.  He  certainly  does  draw  an  inference  of  fact  that  the  father 
died  a  Protestant,  although  for  some  time  before  his  death,  he 
had  conformed  to  the  worship  of  the  Roman  Catholic  Church, 
and  when  dying  he  would  not  permit  the  ministration  of  a  Protestant 
clergyman ;  and  his  Honour  does  express  an  opinion  that,  although 
ihe  wife  had  been  formally  admitted  into'  the  Roman  Catholic 
Church,  the  children  must  be  educated  in  the  Protestant  faith, 
the  father  having  given  no  directions  upon  the  subject  by  will. 
But  this  doctrine,  if  well  founded,  would  only  apply  to  the  educa- 
tion of  wards  of  the  court  of  chancery,  respecting  whom  an  equity 
judge,  representing  the  queen,  as  parens  patriae,  has  a  very  large 
discretion,  and  may  give  directions  beyond  the  scope  of  the  du-, 
ties  of  a  gviardian  for  nurture  under  the  common  law.  There- 
fore, without  venturing  to  question  the  dictum  of  so  eminent  a 
judge  (although  it  seems  not  altogether  to  accord  with  what 
was  said  by  Lord  Cottenham,  C.  in  Talbot  v.  Earl  of  Shrewsbury, 
4  M.  &  C.  672,)  we  do  not  think  it  enough  to  show  that  the  mother 
of  this  infant,  as  guardian  for  nurture,  was  legally  bound  to  educate 
the  children  as  Protestants,  or  that  she  can  be  charged  with  an  illegal 
purpose  when  intending  to  send  them  to  a  Roman  Catholic  school. 
The  commissioners  in  detaining  this  girl  from  her  mother  have  no 
doubt  acted  from  the  most  laudable  motives ;  but  they  are  wrong  in 
point  of  law,  in  supposing  that  the  mother,  by  committing  the  child 
to  their  care  to  be  educated,  has  lost  all  right  over  her.  In  the  case 
cited  from  the  Year  Books,  (supra)  it  was  held  that,  "if  a  guardian 
by  reason  of  nurture,  delivers  the  infant  to  another  for  instruction, 
he  may  afterwards  retake  the  infant :"  and  this  is  vouched  for 
good  law  bv  Lord  Chief  Baron  Comvns  in  his  Digest. 


7/8  PASS  MORE  WILLIAM  son's   CASE.  §    3 

It  might  be  every  way  better  for  this  child  to  remain  in  the 
school  at  Hampstead,  which  appears  to  be  in  all  respects  so  ad- 
mirably conducted;  and  we  may  individually  deplore  her  removal 
from  it;  but  upon  this  matter,  as  there  is  nothing  contrary  to  law 
in  contemplation,  we  have  no  jurisdiction  to  determine ;  and  we 
think  we  are  bound,  in  the  discharge  of  our  official  duty,  to  order 
that  the  infant  Alicia  Race,  be  now  delivered  up  to  her  mother. 
We  trust  that  she  will  ever  be  treated  by  her  mother  with  the 
affection  ^nd  tenderness  anticipated  by  the  father  in  the  letter  which 
he  wrote,  when  he  foresaw  that  he  was  soon  to  fall  in  the  defence 
of  his  country. 

Ordered  accordingly. 

Father's  right  to  custody  of  child. — Tarble,  In  re,  25  Wis.  390;  Common- 
wealth V.  Blatt.  165  Pa.  St.  213;  Rex.  v.  Greenhill,  4  A.  &  E.  624;  Rex 
V.  De  Manneville,  5  East,  221;  People  v.  Gaul,  44  Barb.  (N.  Y.)  98;  Hol- 
yoke  V.  Haskins,  5  Pick.  (Mass.)  20,  26 ;  Jones  v.  Darnall,  103  Ind.  569 ;  Brinster 
V.  Compton,  68  Ala.  299;  People  v.  Mercein,  3  Hill  (N.  Y.),  399;  State 
V.  Richardson,  40  N.  H.  272;   Barry,  In  re,  42  Fed.   113. 

Mother's  right  to  such  custody. — Macready  v.  Wilcox,  2>Z  Conn.  321, 
328;  Armstrong  v.  Ston,  9  Grat.  (Va.)  102;  Copeland  v.  State,  60  Ind. 
394;  Moore  v.  Christian,  56  Miss.  408;  Buckley  v.  Perrine,  54  N.  J.  Eq. 
285 ;    Freeman,   In   re,   54   Kans.   493. 

While  at  common  law  the  father's  right  to  the  custody  of  the-  child 
was  generally  sustained  without  question,  the  modern  practice,  especially 
in  this  country  has  modified  the  old  legal  principle  by.  regarding  more 
closely  the  welfare  of  the  infant  and  the  rights  of  the  motlier.  Brooke 
V.  Logan,  112  Ind.  183;  Richards  v.  Collins,  45  N.  J.  Eq.  283;  Merritt  v. 
Swimley,  82  Va.  433;  Sturtevant  v.  State,  15  Neb.  459;  Corrie  v.  Corrie, 
42  Mich.  509;  Washaw  v.  Gimble,  50  Ark.  351;  Doyle,  In  re,  16  Mo.  App. 
159;  Clark  V.  Bayer,  32  Oh.  St.  299;  State  v.  Kirkpatrick,  54  Iowa,  2>72>', 
Reeves  v.  Reeves,  75  Tnd.  342;  Delano,  In  re,  27  Mcs.  App.  185;  Pray,  In 
re,  60  How.  Pr.    (N.  Y.)    194. 


5.     In  contempt  cases. 

PASSMORE  WILLIAMSON'S  CASE. 

1855.     Supreme  Court  of  Pennsylvania.     26  Pa.  St.  9. 

(Pktttio.veu  was  a  citizen  of  Philadelphia  and  secretary  of  the 
"Pennsylvania  Society  for  Promoting  the  yXbolition  of  Slavery,  etc." 
One  Col.  Wheeler,  a  citizen  of  Virginia,  brought  to  Philadelphia 
certain  slaves  and  i^ctitioner  informed  said  slaves  that  they  were 
free  by  the  laws  of  Pennsylvania,  and,  they  leaving  their  master, 
petitioner  and  others  prevented  the  latter  from  interfering  with 
their  departure.  Wheeler  later  sued  out  a  writ  of  Jiahcas  corpus 
in  the  District  Cr)urt  of  the  United  States  directed  to  the  petitioner 
commanding  liini  to  ])ro(lncc  the  boflies  of  said  slaves.     Petitioner 


§    3  SCOPE  OF   THE  REMEDY.  779 

made  return  that  said  persons  were  not  and  never  had  been  in  his 
custody.  The  court  adjudged  the  return  to  be  insufficient  and 
ordered  petitioner  committed  to  jail  without  bail  for  a  contempt 
in  refusing  to  obey  said  writ.  Petitioner  now  sued  out  the  writ 
in  his  own  behalf.) 

The  opinion  of  the  court  was  delivered  by  Black,  J. 

This  is  an  application  by  Passmore  Williamson  for  a  writ  of 
habeas  corpus.  He  complains  that  he  is  held  in  custody  under  a 
commitment  of  a  District  Court  of  the  United  States,  for  a  contempt 
of  that  court  in  refusing  to  obey  its  process.  The  process  which  he 
is  confined  for  disobeying  was  a  habeas  corpus  commanding  him  to 
produce  the  bodies  of  several  colored  persons  claimed  as  slaves 
under  the  laws  of  Virginia. 

Is  he  entitled  to  the  writ  he  has  asked  for?  In  considering  what 
answer  we  shall  give  to  this  question,  we  are,  of  course,  expected 
to  be  influenced,  as  in  other  cases,  by  the  law  and  the  constitution 
alone.  The  gentlemen  who  appeared  as  counsel  for  the  petitioner, 
and  who  argued  the  motion  in  a  manner  which  did  them  great 
honor,  pressed  upon  us  no  considerations,  except  those  which  were 
founded  upon  their  legal  views  of  the  subject. 

It  is  argued  with  much  earnestness,  and  no  doubt  with  perfect 
sincerity,  that  we  are  bound  to  allow  the  writ,  without  stopping  to 
consider  whether  the  petitioner  has  or  has  not  laid  before  us  any 
probable  cause  for  supposing  that  he  is  illegally  detained — that  every 
man  confined  in  prison,  except  for  treason  or  felony,  is  entitled 
to  it,  ex  dcbito  justitiae, — and  that  we  cannot  refuse  it  without 
a  frightful  violation  of  the  petitioner's  rights,  no  matter  how  plainly 
it  may  appear  on  his  own  showing,  that  he  is  held  in  custody  for  a 
just  cause.  If  this  be  true,  the  case  of  Ex  parte  Lawrence,  5  Binn. 
304,  is  not  law.  There  the  wTit  was  refused,  because  the  applicant 
had  previously  been  heard  before  another  court.  But  if  every  man 
who  applies  for  a  habeas  corpus  must  have  it,  as  a  matter  of  right, 
and  without  regard  to  anything  but  the  mere  fact  that  he  demands 
it,  then  a  court  or  a  judge  has  no  more  power  to  refuse  a  second 
than  a  first  application. 

Is  it  really  true  that  the  special  application  which  must  be  made 
for  every  writ  of  habeas  corpus,  and  the  examination  of  the  com- 
mitment, which  we  are  bound  to  make  before  it  can  issue,  are  mere 
hollow  and  unsubstantial  forms?  Can  it  be  possible  that  the  law 
and  the  courts  are  under  the  control  so  completely  of  their  natural 
enemies  that  every  class  of  offenders  against  the  Union  or  the  State, 
except  traitors  and  felons,  may  be  brought  before  us  as  often  as 
they  please,  though  we  know  beforehand,  by  thei.-  ow^n  admissions, 
that  we  cannot  help  but  remand  them  immediately?  If  these  ques- 
tions must  be  answered  in  the  affirmative,  then  w^e  are  compelled, 
against  our  will  and  contrary  to  our  convictions  of  duty,  to  wage  a 


780  TASSMORE  Williamson's  case.  §  3 

constant  warfare  against  federal  tribunals  by  firing  off  writs  of 
habeas  corpus  upon'them  all  the  time.  The  punitive  justice  of  the 
state  would  suffer  still  more  seriously.  The  half  of  the  Western 
Penitentiary  would  be  before  us  at  Philadelphia  and  a  similar  pro- 
portion at  Cherry  Hill  and  Moyamensing  would  attend  our  sit- 
tings at  Pittsburg.  To  remand  them  would  do  very  little  good ;  for  a 
new  set  of  writs  would  bring  them  all  back  again.  A  sentence  to 
solitary  confinement  would  be  a  sentence,  that  the  convict  should 
travel  for  a  limited  term  up  and  down  the  state,  in  company  with 
the  officers  who  might  have  him  in  charge.  By  the  same  means 
the  inmates  of  the  lunatic  asylums  might  be  temporarily  enlarged, 
much  to  their  own  detriment ;  and  every  soldier  or  seaman  in  the 
service  of  the  state  and  country  could  compel  their  commanders 
to  bring  them  before  the  court  six  times  a  week. 

But  the  habeas  corpus  act  has  never  received  such  a  construction. 
It  is  a  writ  of  right,  and  may  not  be  refused  to  one  who  shows 
a  prima  facie  case  entitling  him  to  be  discharged  or  bailed;  but  he 
has  no  rii^ht  to  demand  it  zvho  admits  that  lie  is  in  legal  custody 
for  an  offence  that  is  not  bailable;  and  he  does  wake  zvJiat  is  equiv- 
alent to  such  an  admission  when  his  own  application,  and  the 
commitment  referred  to  in  it,  shozv  that  he  is  lawfidly  detained.  A 
complaint  must  be  made,  and  the  cause  or  detainer  submitted  to  a 
judge,  before  the  writ  can  go.  The  very  object  and  purpose  of  this 
is  to  prevent  it  from  being  trifled  with  by  those  who  have  manifestly 
no  right  to  be  set  at  liberty.  It  is  like  a  writ  of  error  in  a  criminal 
case,  which  the  court  or  judge  is  bound  to  allow,  if  there  be  reason 
to  suppose  that  an  error  has  been  committed,  and  equally  bound 
to  refuse,  if  it  be  clear  that  the  judgment  must  be  affirmed. 

We  are  not  aware  that  any  application  to  this  court  for  a  writ 
of  habeas  corpus  has  ever  been  successful,  where  the  judges,  at 
the  time  of  the  allowance,  w-ere  satisfied  that  the  prisoner  must  be 
remanded.  The  petitioner's  counsel  say  that  there  is  but  one  re- 
ported case  in  which  is  was  refused,  and  this  fact  is  given  in  the 
argument  as  a  reason  for  supposing  that  in  all  other  cases  the  writ 
was  issued  without  examination.  P.ut  no  such  inference  can  fairly 
be  drawn  from  the  scarcity  of  judicial  decisions  on  a  point  like 
this.  Wc  do  not  expect  to  find  in  reports  so  recent  as  ours  those 
kmg  established  rules  of  law,  which  the  student  learns  from  his 
elementary  books,  and  which  are  constantly  acted  upon  without  be- 
ing disputed. 

The  habeas  corpus  is  a  common  law  writ,  and  has  been  used  in 
I'.ngland  from  time  immemorial,  just  as  it  is  now.  The  statute  of 
.^,1  ('ar.  2,  c.  2,  made  no  alteration  in  the  practice  of  the  courts  in 
granting  these  writs:  ^3  T'.arn.  (!l-  Aid.  420-2;  Chitty's  Rep.  207). 
It  is  merely  provided  tli.il  the  judges  in  vacation  should  have  the 
powers  whirli  the  cr)nrts  had  iircx'iously  exercised  in  term  time  (l 


§    3  SCOPE  OF   THE   REMEDY.  78I 

Chitty  Gen.  Prac.  586)  and  inflicted  penalties  npon  those  who 
should  defeat  its  operation.  The  common  law  upon  this  subject 
was  brought  to  x\merica  by  the  colonists ;  and  most,  if  not  all  the 
states,  have  since  enacted  laws  resembling  the  English  Statute  of 
Charles  II  in  every  principal  feature.  The  constitution  of  the 
United  States  declares  that  "the  privilege  of  a  writ  of  habeas  corpus 
shall  not  be  suspended  unless,  when  in  the  case  of  rebellion  or  inva- 
sion, the  public  safety  may  require  it."  Congress  has  conferred 
upon  the  Federal  Judges  the  power  to  issue  such  writs  according  to 
the  principles  and  rules  regulating  it  in  other  courts.  Seeing  that 
the  same  general  principles  of  common  law  prevail  in  England  and 
America,  and  seeing  also  the  similarity  of  statutory  regulations 
in  both  countries,  the  decisions  of  the  English  judges  as  well  as  the 
American  courts,  both  state  and  federal,  are  entitled  to  our  fullest 
respect  as  settling  and  defining  our  powers  and  duties. 

Blackstone  (3  Com.  132)  says  that  the  writ  of  habeas  corpus 
should  be  allowed  only  when  the  court  or  judge  is  satisfied  that 
the  party  hath  probable  cause  to  be  delivered.  He  gives  cogent 
reasons  why  it  should  not  be  allowed  in  any  other  case,  and  cites 
with  unqualified  approbation  the  precedent  set  by  Sir  Edward  Coke 
and  Chief  Justice  Vaughan  in  cases  where  they  had  refused  it. 
Chitty  lays  down  the  same  rule  (i  Cr.  Law  loi ;  i  Gen.  Pr.  686-7.) 
It  seems  to  have  been  acted  upon  by  all  the  judges.  The  writ 
was  refused  in  Rex  v.  Sheiner  (Burr.  765,  and  in  the  case 
of  three  Spanish  Sailors  (2  Black's  R.  1324.)  In  liobhouse's  case 
(3  Barn.  &  Aid.  420)  it  was  unanimouslv  settled  by  the  court  as 
the  true  construction  of  the  statute,  that  the  writ  is  never  to  be 
allowed,  if  upon  view  of  the  commitment,  it  be  manifest  that  the 
prisoner  must  be  remanded.  In  New  York  when  the  statute  in 
force  there  was  precisely  like  ours  (so  far,  I  mean,  as  this  question 
is  concerned),  it  was  decided  by  the  Supreme  Court  (5  Johns. 
382)  that  the  allowance  of  the  writ  was  a  matter  within  the  discre- 
tion of  the  court,  depending  on  the  grounds  laid  in  the  application. 
It  was  refused  in  Husted's  case,  (i,  2  Com.  136)  and  in  Ex  parte 
Ferguson  (9  Johns.  R.  139).  In  addition  to  this  we  have  the 
opinion  of  Chief  Justice  Marshall  in  Watkin's  case  (3  Peters  202) 
that  the  writ  ought  not  to  be  awarded  if  the  court  is  satisfied 
that  the  prisoner  must  be  remanded.  It  was  accordingly  refused 
by  the  Supreme  Court  of  the  United  States  in  that  case,  as  it 
had  been  before  in  Kearney's  case. 

On  the  whole  we  are  thoroughly  satisfied  that  our  dutv  requires 
us  to  view  and  examine  the  cause  of  detainer  now,  and  to  make 
an  end  of  the  business  at  once,  if  it  appears  that  we  have  no 
power  to  discharge  him  on  the  return  of  the  writ. 

The  prisoner,  as  already  said,  is  confined  on  a  sentence  of  the 
district   court   of  the   United    States,    for   a    contempt.      A    habeas 


782  PASSMORE  WILLIAMSON'S   CASE.  ^    3 

corpus  is  not  a  writ  of  error.  It  cannot  bring  a  case  before  us 
in  such  a  manner  that  we  can  exercise  any  kind  of  appellate  juris- 
diction in  it.  On  a  habeas  corpus,  the  judgment  even  of  a  subordi- 
nate state  court  cannot  be  disregarded,  reversed,  or  set  aside,  how- 
ever clearlv  we  may  perceive  it  to  be  erroneous,  and  however 
plain  it  may  be  that  we  ought  to  reverse  it  if  it  were  before  us 
on  appeal  or  writ  of  error.  We  can  only  look  at  the  record  to 
see  whether  a  judgment  exists,  and  have  no  power  to  say  whether 
it  is  right  or  wrong.  It  is  conclusively  presumed  to  be  right  until 
it  is  regularly  brought  up  for  revision.  We  decided  this  three  years 
ago  at  Sunbury,  in  a  case  which  we  all  thought  one  of  much 
hardship.  But  the  rule  is  so  familiar,  so  universally  acknowledged, 
and  so  reasonable  in  itself,  that  it  requires  only  to  be  stated.  It, 
applies  wath  still  greater  force,  or  at  least  for  much  stronger  rea- 
sons, to  the  decisions  of  the  federal  courts.  Over  them  we  have 
no  control  at  all,  under  any  circumstances,  or  by  any  process  that 
could  be  devised.  Those  tribunals  belong  to  a  different  judicial 
system  from  ours.  They  administer  a  different  code  of  laws  and 
are  responsible  to  a  different  sovereignty.  The  district  court  of 
the  United  States  is  as  independent  of  us  as  we  are  of  it — as  in- 
dependent as  the  Supreme  Court  of  the  United  States  is  of  either. 
What  the  law  and  the  constitution  have  forbidden  us  to  do  directly 
on  writ  of  error,  we,  of  course,  cannot  do  indirectly  by  the  writ 
of  habeas  corpus. 

But  the  petitioner's  counsel  have  put  this  case  upon  the  ground 
that  the  whole  proceeding  against  him  in  the  district  court  was 
coram  non  judice,  null  and  void.  It  is  certainly  true  that  a  void 
judgment  may  be  regarded  as  no  judgment  at  all;  and  every  judg- 
ment is  void,  which  clearly  appears  on  its  own  face  to  have  been 
pronounced  by  a  court  having  no  jurisdiction  or  authority  in  the 
subject  matter.  For  instance,  if  a  federal  court  should  convict 
and  sentence  a  citizen  for  libel ;  or  if  a  state  court,  having  no 
jurisdiction  except  in  civil  pleas  should  try  an  indictment  for  crime 
and  convict  the  party — in  these  cases  the  judgment  would  be  wholly 
void.  If  the  petitioner  can  bring  himself  within  this  principle, 
then  there  is  no  judgment  against  him ;  he  is  wrongfully  impris- 
oned, and  we  must  order  him  to  be  brought  out  and  discharged. 

What  is  he  detained  for?  The  answer  is  easy  and  simple.  The 
commitment  shows  that  he  was  tried,  found  guilty,  and  sentenced 
for  contempt  of  court,  and  nothing  else.  He  is  now  confined  in 
execution  of  that  sentence,  and  for  no  other  cause.  This  was  a 
distinct  and  substantive  offense  against  the  authority  and  govern- 
ment of  the  United  States.  Does  any  one  doubt  the  jurisdiction 
of  the  district  court  to  punish  for  contempt?  Certainly  not.  All 
courts  have  this  power,  anrl  must  necessarily  have  it;  otherwise 
they  could  not  protect  themselves  from  insult,  or  enforce  obedience 


§    3  SCOPE  OF  THE  REMEDY.  783 

to  their  process.  Without  it,  they  would  be  utterly  powerless.  The 
authority  to  deal  with  an  offender  of  this  class  belongs  exclusively 
to  the  court  in  which  the  offence  is  committed ;  and  no  other  court, 
not  even  the  highest,  can  interfere  with  its  exercise,  either  by 
writ  of  error,  mandamus  or  habeas  corpus.  If  the  power  be 
abused  there  is  no  remedy  but  by  impeachment.  The  law  was  so 
held  by  this  court  in  McLaughlin's  case,  5  W.  &  Ser.  276,  and 
by  the  Supreme  Court  of  the  United  States  in  Kearney's  case, 
7  Wheaton  ^S.  It  was  solemnly  settled  as  part  of  the  common  law 
m  Brass  Crosby's  case,  3  Wilson  183,  by  a  court  in  which  sat  two  of 
the  foremost  jurists  that  England  ever  produced.  We  have  not  the 
smallest  doubt,  that  it  is  the  law ;  and  we  must  administer  it  as 
we  find  it;  The  only  attempt  ever  made  to  disregard  it  was  by  a 
New  York  judge  (4  Johns.  R.  345)  who  was  not  supported  by 
his  brethren.  This  attempt  was  followed  by  all  the  evil  and  con- 
fusion, which  Blackstone  and  Kent,  and  Story  declared  to  be  its 
necessary  consequences.  Whoever  will  trace  that  singular  con- 
troversy to  its  termination  will  see,  that  the  chancellor  and  a  ma- 
jority of  the  supreme  court,  though  once  outvoted  in  the  senate, 
were  never  answered.  The  senate  itself  yielded  to  the  force  of  the 
truths  which  the  supreme  court  had  laid  down  so  clearly,  and  the 
judgment  of  the  court  of  errors  in  Yeatcs'  case,  6  Johns.  503,  was 
overruled  by  the  same  court  a  year  afterwards  in  Yates  v.  Lansing, 
9  Johns.  R.  423,  which  grew  out  of  the  very  same  transaction,  and  de- 
pended on  the  same  principles.  Still  further  reflection  at  a  later 
])eriod  induced  the  senate  to  join  the  popular  branch  of  the  legis- 
lature in  passing  a  statute  which  effectually  prevents  one  judge 
from  interfering  by  habeas  eorpus  with  the  judgment  of  another 
on  the  question  of  contempt. 

These  principles  being  settled,  it  follows  irresistibly,  that  the 
district  court  of  the  United  States  had  power  and  jurisdiction 
to  decide  what  acts  constitute  a  contempt  against  it ;  to  determine 
w^hether  the  netitioner  has  been  guilty  of  a  contempt,  and  to  inflict 
upon  him,  the  punishment,  which  in  its  opinion,  he  ought  to 
suffer.  If  we  fully  believed  the  petitioner  to  be  innocent — if  we 
were  sure  that  the  court  that  convicted  him  misunderstood  the  facts, 
or  misapplied  the  law — still  we  could  not  re-examine  the  evidence, 
or  re-judge  the  justice  of  the  case,  without  grossly  disregarding 
what  we  know  to  be  the  law  of  the  land.  The  judge  of  the  dis- 
trict court  decided  the  question  on  his  own  constitutional  respon- 
sibility. Even  if  he  could  be  shown  to  have  acted  tyranically,  he 
would  be  called  to  answer  for  it  only  in  the  Senate  of  the  LInited 
States. 

But  the  counsel  of  the  petitioner  go  behind  the  proceedings  in 
which  he  was  convicted,  and  argue  that  the  sentence  for  contempt, 
is  void,  because  the  court  had  no  jurisdiction  of  a  certain   other 


784  PA5SM0RE  Williamson's  case.  §  3 

matter,  which  it  was  investigating  or  attempting  to  investigate, 
when  the  contempt  was  committed.  We  find  a  judgment  against 
him  in  one  case ;  and  he  complains  about  another,  in  which  there 
is  no  judgment.  He  is  suffering  for  an  offence  against  the  United 
States ;  and  he  says  that  he  is  innocent  of  any  wrong  to  a  particular 
individual.  He  is  conclusively  adjudged  guilty  of  a  contempt ;  and 
he  tells  us  that  the  court  has  no  jurisdiction  to  restore  Mr.  Wheeler's 
slaves. 

It  must  be  remembered  that  contempt  of  court  is  a  specific  crim- 
inal offence.  It  is  punished  sometimes  by  indictment,  and  some- 
times in  a  summary  proceeding,  as  it  was  in  this  case.  In  either 
mode  of  trial,  the  adjudication  against  the  offender  is  a  conviction, 
and  the  commitment  in  consequence  is  an  execution ;  7  Wheaton 
38.  This  is  well  settled,  and  T  believe  has  never  been  doubted. 
Certainly  the  learned  coimsel  for  the  petitioner,  have  not  denied  it. 
The  contempt  may  be  connected  with  some  particular  cause,  or  it 
may  consist  in  misbehavior,  which  has  a  tendency  to  obstruct  the 
administration  of  justice  generally.  When  it  is  committed  in  a 
pending  cause,  the  proceeding  to  punish  it  is  a  proceeding  by  itself. 
It  is  not  entitled  in  the  cause  pending,  but  on  the  criminal  side ; 
(Wall.  134).  The  record  of  a  conviction  for  a  contempt  is  as 
distinct  from  the  matter  under  investigation,  when  it  was  com- 
mitted, as  an  indictment  for  perjury  is  from  the  cause  in  which 
the  false  oath  was  taken.  Can  a  person,  convicted  of  perjury, 
ask  us  to  deliver  him  from  the  penitentiary,  on  showing  that  the 
oath,  on  w^hich  the  perjury  is  assigned,  was  taken  in  a  cause  of 
which  the  court  had  no  jurisdiction?  Would  any  judge  in  the 
Commonwealth  listen  to  such  a  reason  for  treating  the  sentence 
as  void?  If,  instead  of  swearing  falsely,  he  refuses  to  be  sworn 
at  all.  and  he  is  convicted  not  of  perjury,  but  of  contempt,  the 
same  rule  applies  and  with  a  force  precisely  equal.  If  it  be  really 
true  that  no  contempt  can  be  committed  against  a  court  while 
it  is  inquiring  into  a  matter  beyond  its  jurisdiction,  and  if  the 
fact  was  so  in  this  case,  then  the  petitioner  had  a  good  defence ; 
and  he  ought  to  have  made  it  on  his  trial ;  to  make  if  after  con- 
viction is  too  late.  To  make  it  here  is  to  produce  it  before  the 
wrong  tribunal. 

Every  judgment  must  be  conclusive  until  reversed.  Such  is  the 
character,  nature  and  essence  of  all  judgments.  If  it  be  not  con- 
clusive it  is  not  a  judgment.  A  court  must  either  have  power 
to  deride  a  given  question  finally  and  for  ever,  so  as  to  preclude 
any  further  inquiry  u|)on  it,  or  else  it  has  no  power  to  make  any 
decision  at  all.  To  say  that  a  court  may  determine  a  matter  and 
that  another  court  may  regard  the  same  matter  afterwards  as 
open   and   nndctcrniincd,   is  an   absurdity  in  terms. 

It  is  most  c^prcinllv  necessary  that  convictions   for  contempt  in 


§    3  SCOPE  OF    rilE   REMEDY.  785 

one  court  shall  be  final,  conclusive,  au'l  free  from  re-examination 
by  other  courts  on  habeas  corpus.  If  the  law  were  not  so,  our 
judicial  system  would  break  to  pieces  in  a  month.  Courts  totally 
unconnected  with  each  other  would  be  coming  in  constant  col- 
lision. The  inferior  courts  would  revise  all  the  decisions  of  the 
judges  placed  over  and  above  them.  A  party  unwilling  to  be 
tried  in  this  court,  need  only  defy  our  authority,  and  if  we  commit 
him,  to  take  out  his  habeas  corpus  before  an  inferior  judge  of  his 
own  choosing,  and  if  that  judge  is  of  opinion  that  we  ought  not 
to  try  him,  there  is  an  end  of  the  case. 

This  doctrine  is  so  plainly  against  the  reason  of  the  thing  that 
it  would  be  wonderful  indeed  if  any  authority  for  it  could  be  found 
in  the  books.  There  is  none  except  the  overruled  decision  of  Mr. 
Justice  Spencer,  of  New  York,  already  referred  to,  and  some 
efforts  of  the  same  kind  to  control  the  other  courts,  made  by  Sir 
Edward  Coke,  in  the  King's  Bench,  which  are  now  universally 
admitted  to  have  been  illegal,  as  well  as  rude  and  intemperate.  On 
the  other  hand,  we  have  all  the  English  judges,  and  all  our  own, 
declaring  their  want  of  power  to  interfere  with  or  control  one 
another  in  this  way.  I  will  content  myself  by  simply  referring 
to  some  of  the  books  in  which  it  is  established  that  the  convic- 
tion of  contempt  is  a  separate  proceeding,  and  is  conclusive  of 
every  fact  which  might  have  been  urged  on  the  trial  for  contempt, 
and  among  others  want  of  jurisdiction  to  try  the  cause  in  which 
Lhe  contempt  was  committed;  4  Johns.  R.  325,  et  seq.;  the  opinion 
of  Chief  Justice  Kent  on  pages  370  and  375  ;  6  Johns.  503  ;  9  Johns. 
423;  I  Hill  170;  5  Iredell  199:  Id.  153;  2  Sandf.  724;  i  Carter  160;  t 
Blackf.  166;  25  Miss.  836;  2  Wheeler's  Criminal  Cases,  p.  i  ;  14  Ad. 
&  El.  558.  These  cases  will  speak  for  themselves  but  I  may  remark 
as  to  the  last  one  that  the  very  same  objections  were  made  there 
and  here.  The  party  was  convicted  of  contempt  in  not  obeying 
a  decree.  He  claimed  his  discharge  on  habeas  corpus  because  the 
chancellor  had  no  jurisdiction  to  make  the  decree,  being  interested 
in  the  cause  himself.  But  the  court  of  Queen's  Bench  held  that 
if  that  was  a  defence  it  should  have  been  made  on  the  trial  for 
contempt,  and  the  conviction  was  conclusive.  We  cannot  choose 
but  hold  the  same  rule  here.  Any  other  would  be  a  violation  of  the 
law  which  is  established  and  sustained  by  all  authority  and  by  all 
reason. 

But  certainly  the  want  of  jurisdiction  alleged  in  this  case  would 
not  even  have  been  a  defence  on  the  trial.  The  proposition  that 
a  court  is  powerless  to  punish  for  disorderly  conduct  or  disobe- 
dience of  its  process  in  a  case,  which  it  ought  ultimately  to  dis- 
miss for  want  of  jurisdiction,  is  not  only  unsupported  by  judicial 
authority,  but  we  think  that  it  is  new  even  as  an  argument  at 
the  bar.    We  ourselves  have  heard  many  cases  through  and  through 


786  PASSMOKE  Williamson's  case.  §  3 

before  we  became  convinced  that  it  was  our  duty  to  remit  the  par- 
ties to  another  tribunal.  But  wc  never  thought  that  our  process 
could  be  defied  in  such  cases  more  than  in  others. 

There  are  some  cases  in  which  the  want  of  jurisdiction  would 
be  seen  at  the  first  blush ;  but  there  are  others  in  which  the  court 
must  inquire  into  all  the  facts  before  it  can  possibly  know  whether 
it  has  jurisdiction  or  not.  Any  one  who  obstructs  or  baffles  a 
judicial  investigation  for  that  purpose  is  unquestionably  guilty  of 
a  crime  for  which  he  may  and  ought  to  be  tried,  convicted,  and 
punished.  Suppose  a  local  action  to  be  brought  in  the  wrong 
countv ;  this  is  a  defence  to  the  action  but  a  defence  which  must 
be  made  out  like  any  other.  While  it  is  pending,  neither  a  party, 
nor  an  officer,  nor  any  other  person,  can  safely  insult  the  court, 
or  resist  its  order.  The  court  may  not  have  power  to  decide  upon 
the  merits  of  the  case ;  but  it  has  undoubted  power  to  try  whether 
the  wrong  was  done  within  its  jurisdiction  or  not.  Suppose  Mr. 
Williamson  to  be  called  before  the  circuit  court  of  the  United 
States  as  a  witness  in  a  trial  for  murder,  alleged  to  be  committed 
on  the  high  seas.  Can  he  refuse  to  be  sworn,  and  at  his  trial 
for  contempt  justify  himself  on  the  ground  that  the  murder  was 
in  fact  committed  within  the  limits  of  a  state,  and  therefore  triable 
only  in  a  state  court?  If  he  can,  he  can  justify  perjury  for  the 
same  rerson.  But  such  a  defence  for  either  crime  has  never 
been  heard  of  since  the  beginning  of  the  world.  Much  less  can 
it  be  shown  after  conviction,  as  a  groimd  for  declaring  the  sen- 
tence void. 

The  writ  which  the  petitioner  was  convicted  of  disobeying  was 
legal  on  its  face.  It  enjoined  upon  him  a  simple  duty,  which  he 
ought  to  have  understood  and  performed  without  hesitation.  That 
he  did  not  do  so  is  a  fact  conclusively  established  by  the  adjudi- 
cation which  the  court  made  upon  it.  I  say  the  writ  was  legal. 
because  the  act  of  congress  gives  to  all  the  courts  of  the  United 
States  the  power  "to  issue  writs  of  habeas  corpus  when  necessary 
for  the  exercise  of  their  jurisdiction,  and  agreeably  to  the  prin- 
ciples and  usages  of  law."  Chief  Justice  Marshall  decided  in  Burr's 
trial,  that  the  principles  and  usages  referred  to' in  this  act  were 
tho.se  of  the  common  law.  A  part  of  the  jurisdiction  of  the  dis- 
trict court  consists  in  restoring  fugitive  slaves ;  and  the  habeas 
corpus  may  be  used  in  aid  of  it  when  necessary.  It  was  awarded 
here  upon  the  a])plication  of  a  person  who  complained  that  his 
slaves  were  detained  from  him.  Unless  they  were  fugitive  slaves 
they  could  not  be  slaves  at  all,  according  to  the  petitioner's  own 
doctrine  and  if  the  judge  took  that  view  of  the  subject,  he  was 
bound  to  award  the  writ.  If  the  i)ers(ins  mentioned  on  it  had 
ttirnccj  out,  on  the  hearing,  to  be  fugitives  from  labor,  the  duty 
of  flic  district  jndc^c  to   restore  him,  or  his  power  to  liring  them 


§    3  SCOPE   OF   THE    REMEDY.  y?^'^ 

before  him  on  a  habeas  corpus,  would  have  been  disputed  by  none 
except  the  very  few  who  think  that  the  constitution  and  law  on 
that  subject  ought  not  to  be  obeyed.  The  duty  of  the  court  to  in- 
quire into  the  facts  on  which  its  jurisdiction  depends  is  as  plain 
as  is  its  duty  not  to  exceed  it  when  it  is  ascertained.  But  Mr. 
Williamson  stopped  the  investigation  in  limine;  and  the  conse- 
quence, is,  that  everything  in  the  case  remains  unsettled.  Whether 
the  persons  named  in  the  writ  were  slaves  or  free — whether  Mr. 
^^^heele^  was  the  owner  of  them — whether  they  were  unlawfully 
taken  from  him — whether  the  court  had  jurisdiction  to  restore 
them — all  these  points  are  left  open  for  the  want  of  a  proper  re- 
turn. It  is  not  our  business  to  say  how  they  ought  to  be  decided 
but  we  do  not  doubt  that  the  learned  and  upright  magistrate  who 
presides  in  the  district  court,  w^ould  have  decided  them  as  rightly 
as  any  judge  in  the  country.  Mr.  \\^illiamson  had  no  right  to 
arrest  the  inquiry  because  he  supposed  that  an  error  would  be 
committed  on  the  question  of  jurisdiction,  or  any  other  question. 
If  the  assertions  which  his  counsel  now  make  on  the  law  and  the 
facts  be  correct,  he  prevented  an  adjudication  in  favor  of  his 
proteges,  and  thus  did  them  a  wrong  which  is  probably  a  greater 
offence  in  his  own  eyes  than  anything  he  could  do  against  Mr. 
Wheeler's  rights.  There  is  no  reason  to  believe  that  any  trouble 
whatever  would  have  come  out  of  the  case  if  he  had  made  a  true, 
full  and  special  return  of  all  the  facts ;  for  then  the  rights  of  all 
parties,  w^hite  and  black,  could  have  been  settled  or  the  matter 
dismissed  for  want  of  jurisdiction,  if  the  law  so  required. 

It  is  argued  that  the  court  had  no  jurisdiction,  because  it  is 
not  averred  that  the  slaves  were  fugitives,  but  merely  that  they 
owed  service  by  the  laws  of  Virginia.  Conceding,  for  the  argu- 
ment's sake,  that  this  was  the  only  ground  on  which  the  court 
could  have  interfered — conceding  also  that  it  is  not  substantially 
alleged  in  the  petition  of  Mr.  Wheeler — the  proceeding  was,  never- 
theless, not  void  for  that  reason. 

The  federal  tribunals,  though  courts  of  limited  jurisdiction,  are 
not  inferior  courts.  Their  judgments  until  reversed  by  the  proper 
appellate  court,  are  valid  and  conclusive  upon  the  parties,  though 
the  jurisdiction  be  not  alleged  in  the  pleadings,  nor  in  any  part 
of  the  record ;  lo  AMieaton  192.  Even  if  this  were  not  settled 
and  clear  law,  it  would  still  he  certain,  that  the  fact  on  which 
jurisdiction  depends  need  not  be  stated  in  the  process.  The  want 
of  such  a  statement  in  the  body  of  the  habeas  corpus,  or  in  the 
petition  on  which  it  was  awarded,  did  not  give  Mr.  Williamson 
a  right  to  treat  it  with  contempt.  If  it  did,  then  the  courts  of  the 
United  States  must  set  out  the  ground  of  their  jurisdicion  in  every 
subpoena  for  a  witness;  and  a  defective  or  untrue  averment  will 
authorize  the  witness  to  be  as  contumacious  as  he  sees  fit. 


7S8  PASSMOKE  Williamson's  case.  §  3 

But  all  that  was  said  in  the  argument  about  the  petition,  the 
writ,  and  the  facts  which  were  proved,  or  could  be  proved,  refers 
to  the  evidence,  on  which  the  conviction  took  place.  This  has 
passed  iii  rem  adjudicatajn.  We  cannot  go  one  step  behind  the 
conviction  itself.  We  could  not  reverse  it  if  there  had  been  no 
evidence  at  all.  We  have  no  more  authority  in  law  to  come  be- 
tween the  prisoner  and  the  court,  to  free  him  from  sentence  like 
this,  than  we  would  have  to  countermand  an  order  issued  by  the 
commander-in-chief  of  the  United  States  amiy.  We  have  no  au- 
thoritv,  jurisdiction  or  power,  to  decide  anything  here  except  the 
simple  fact  that  the  district  court  had  power  to  punish  for  a  con- 
tempt a  person  who  disobeys  its  process — that  the  petitioner  is 
convicted  of  such  contempt — and  that  the  conviction  is  conclusive 
tipon  us.  The  jurisdiction  of  the  court  on  the  case  which  had  been 
before  it,  and  everything  else  which  preceded  the  conviction,  are 
out  of  our  reach,  and  they  are  not  examinable  by  us,  and  of  course 
not  now  intended  to  be  decided. 

There  may  be  cases  in  which  we  ought  to  check  usurpation  of 
power  by  the  federal  courts.  If  one  of  them  should  presume, 
upon  any  pretence  whatever,  to  take  out  of  our  hands  a  prisoner 
convicted  of  contempt  in  this  court,  we  would  resist  it  by  all  proper 
and  legal  means.  What  we  would  not  permit  them  to  do  against 
us  we  will  not  do  against  them.  We  must  maintain  the  rights  of 
the  state  and  its  courts ;  for  to  them  alone  can  the  people  look  for 
a  competent  administration  of  their  domestic  concerns ;  but  we 
will  do  nothing  to  impair  the  constitutional  vigor  of  the  general 
government,  which  is  "the  sheet  anchor  of  our  peace  at  home 
and  our  safety  abroad." 

Some  complaint  was  made  in  the  argument  about  the  sentence 
being  for  an  indefinite  time.  If  this  were  erroneous  it  would  not 
avail  here ;  since  we  have  as  little  power  to  revise  the  judgment 
for  that  reason  as  for  any  other.  Hut  it  is  not  illegal  nor  contrary 
to  the  usual  rule  in  such  cases.  It  means  commitment  until  the 
party  shall  make  proper  submission:  3  Ld.  Raym.  1108;  4  Johns. 
375.  The  law  will  not  bargain  with  anybody  to  let  its  courts  be 
<lefied  for  a  specified  term  of  imprisonment.  There  are  many 
persons  who  would  gladly  purchase  the  honors  of  martyrdom  in  a 
l)0])ular  cau.se  at  almost  any  given  price,  while  others  are  deterred 
by  the  mere  show  of  punishment.  Each  is  detained  imtil  he  finds 
himself  willing  to  conform.  This  is  merciful  to  the  submissive 
and  not  too  severe  to  the  re  factory.  The  petitioner,  therefore,  car- 
ries the  key  of  his  prison  in  his  own  pocket.  Tie  can  come  out  when 
he  will,  by  making  terms  with  the  coiu't  thnt  sent  him  there.  But 
if  he  chooses  to  struggle  for  a  triumph — if  nothing  will  content 
him  but  a  clean  victory  or  a  clean  defeat — he  cannot  expect  us 
to  aid  him.     Oiu*  duties  are  of  a  widelv  diflferent  kind.     Thev  con- 


§    3  SCOPE  OF  THE  REMEDY.  789 

sist  in  discouraging,  as  much  as  in  us  lies,  all  such  contests  with 
the  legal  authorities  of  the  country.     *     *     * 
(Concurring  opinion  by  Lowrie,  J.,  omitted.) 

That  the  function  of  habeas  corpus  in  cases  where  persons  are  committed 
for  contempt  of  court  extends  onlj'  to  an  inquir\'  intothe  jurisdiction  of 
the  court  by  whom  the  commitment  was  ordered  and  into  the  validity  of 
process  upon  which  conlinement  is  made.  Cooper,  In  re,  32  Vt.  253 ;  Robb 
V.  McDonald,  29  Iowa,  330;  Reed,  Ex  parte,  100  U.  S.  13;  People  v.  Cas- 
sels,  5  Hill  (N.  Y.).  164;  Bissell,  In  re,  40  Mich.  63;  Goodin,  Ex  parte, 
67  Mo.  637;  Sam,  Ex  parte,  51  Ala.  34;  People  v.  Jacobs,  66  N.  Y.  8; 
People  V.  Perfinbrink,  96  111.  68;  Maulsby,  Ex  parte,  13  Md.  625 ;  Havlik, 
In  re,  45  Neb.  747;  Cohn,  Ex  parte,  55  Cal.  193;  Mason,  Ex  parte,  16 
Mo.  App.  41;  Terry,  Ex  parte,  128  U.  S.  289;  Clark,  Ex  parte,  no  Cal. 
405;  Millett.  Ex  parte,  37  Mo.  App.  76;  People  v.  Sheriff,  29  Barb.  (N. 
Y.)   622;  Rosenberg,  In  re,  90  Wis.  581;  Stokes,  In  re,  5  S.  Car.  71. 


6.     To  secure  release  on  bail. 

STATE  V.  JAMES  E.  EVERETT. 

STATE  V.   BENJAMIN  POTTER. 
1838.  Court  of  Appeals  of  South  Carolina.     Dudley  295, 

Earle,  J.,  delivered  the  opinion  of  the  court. 

The  points  presented  in  these  two  cases  are  the  same,  and  they 
will  therefore  be  considered  together. 

The  defendants  in  both  cases  were  brought  up  before  a  judge 
in  chambers  on  habeas  corpus.  The  cause  shown  in  each  case,  on 
the  return  of  the  w^rit,  was  a  warrant  of  commitment,  under  the 
seal  of  a  justice  of  quorum.  In  the  case  of  Everett,  the  charge 
was  stated,  that  the  defendant  "was  charged  before  A.  H.  Brown, 
on  the  oath  of  A.  Gibson,  from  circumstances,  with  larceny  of 
bank  bills  of  the  Union  Bank  of  Florida,  valued  at  $70,  there  being 
other  bills  lost,  and  one  $50  and  one  $20  bill  being  found  on  the 
person  of  the  said  Everett."  In  Potter's  case,  that  he  "was  charged 
l)efore  me  upon  the  oath  of  Captain  Ross,  with  having  committed 
larceny."  Both  warrants  commenced  and  concluded  in  legal  forms, 
and  in  every  other  particular  were  technically  correct.  In  the  case 
of  Everett,  a  motion  was  made  on  the  return  of  the  writ,  for  his 
discharge,  on  the  ground  that  the  warrant  contained  no  direct  and 
certain  charge  of  felony  or  any  other  offence ;  and  in  the  case  of 
Potter,  a  like  motion  was  made,  on  the  ground,  that  the  charc:e 
in  the  warrant  was  uncertain  and  insufficient ;  and  both  defendants 


;790  STATE    V.    EVERETT.  §    3 

were  discharged,  not  from  confinement  on  bail  for  their  appear- 
ance, but  were  set  at  liberty  to  go  without  day. 

Xo  decision  that  can  be  made  by  this  court,  will  recapture  the 
defendants,  and  bring  them  to  justice.  But  it  has  been  urged  upon 
us  by  the  attorney  general  to  express  an  opinion  which  may  pre- 
vent their  former  discharge  from  being  urged  in  their  behalf,  in 
case  they  should  be  retaken,  and  may  serve  to  guide  magistrates 
in  like  cases. 

At  this  day  one  would  hardly  suppose  that  a  question  could 
arise  on  the  subject  of  proceedings  under  the  Habeas  Corpus  Act, 
and  vet  there  does  seem  to  be  a  popular  misapprehension  in  rela- 
tion to  them,  indicating  the  belief  that  the  Habeas  Corpus  Act  is  a 
sort  of  relief  law — a  summary  general  jail  delivery. 

The  object  of  the  statute  was  to  provide  a  mode  of  relief  from 
unlawful  imprisonment ;  a  confinement  without  lawful  warrant, 
without  legal  cause,  on  vague,  indefinite  and  tmcertain  charges. 
But  the  protection  intended  by  the  act,  goes  no  farther  than  an 
enlargement  on  bail  for  the  appearance  of  the  prisoner  at  the  next 
sessions ;  and  it  is  not  every  prisoner  that  can  claim  even  this 
enlargement  ex  debito  jnstitae.  Under  the  act,  in  the  very  sec- 
tion which  provides  for  the  issuing  the  w'rit,  an  important  excep- 
tion gives  character  to  the  whole  proceeding — "unless  the  com- 
mitment aforesaid  were  for  treason  or  felony,  plainly  and  specially 
expressed  in  the  warrant  of  commitment,"  on  the  return  of  the 
writ,  with  the  warrant  of  detention,  the  judge  "shall  discharge 
the  said  prisoner  from  his  imprisonment,  taking  his  recognizance 
for  his  appearance,  with  one  or  more  surety  or  sureties  in  any 
sum  according  to  his  discretion,"  etc.,  "unless  it  shall  appear  that 
the  party  so  committed  is  retained  upon  legal  process,  order  or 
warrant  out  of  some  court  that  hath  jurisdiction  of  criminal  mat- 
ters, or  by  some  warrant,  signed  and  sealed  by  the  justice  of  the 
peace,  for  such  matters  or  ofifences  for  the  which,  by  the  law, 
the  prisoner,  is  not  bailable."  The  object  therefore  is  to  ascertain 
the  cause  of  arrest  and  imprisonment,  and  to  obtain  bail  if  the 
offence  be  one  for  which  bail  is  allowed.  Grand  larceny  is  a  felony, 
for  which  bail  is  not  granted  of  course,  and  I  apprehend  few  cases 

can  be  found  since  the  case  of in  Lord  Mansfield's  time,  where 

one  caught  with  the  stolen  goods  upon  him,  has  not  been  committed 
to  jail. 

Tn  the  cases  before  us,  the  warrants  do  contain  an  explicit 
charge  of  a  distinct  and  specified  ofifence.  In  the  case  of  Everett 
it  is  for  "felony  plainly  and  specially  expressed,"  for  which  by 
the  law  the  prisoner  was  not  bailable,  stating  in  fact  that  he  had 
the  stolen  goods  upon  him.  By  virtue,  therefore,  of  any  powers 
delegated  bv  the  Habeas  Corpus  Act.  such  a  person  could  not  be 
hailed,  nitich  less  released  and  set  at  liberty  to  go  without  day. 


§    3  SCOl'E  OF   Tllli  REMEDY.  79I 

In  the  case  of  Potter,  the  charge  is — that  the  prisoner  had 
committed  larceny,  without  any  facts  or  circumstances  to  show 
whether  it  was  grand  or  petit  larceny.  In  such  case,  in  favor  of 
liberty,  without  more  appearing  from  the  depositions  or  examina- 
tions, I  should  regard  it  as  a  charge  of  petit  larceny,  and  admit 
to  bail.  Potter,  therefore,  should  have  been  admitted  to  bail  and 
not  released.  We  think  the  warrants  of  commitment  are  sufificientl}' 
certain  in  both  cases.  It  is  a  great  mistake  to  suppose  that  a 
warrant  for  the  apprehension  or  a  warrant  of  commitment,  need 
contain  any  statement  at  all,  of  the  evidence  on  which  it  is  founded. 
or  need  enumerate  any  of  the  facts  and  circumstances  accompany- 
ing the  ofrence.  There  are  several  high  authorities  that  it  need 
not  even  contain  a  specification  of  the  particular  offence.  But  the 
better  opinion,  as  well  as  the  general  and  approved  practice,  is 
that  it  should  state  the  offence  with  convenient  certainty,  that  it 
should  not  be  for  felony  generally,  but  should  contain  the  special 
nature  of  the  felony.  As  for  felony  for  the  death  of  J.  S.  or  bur- 
glary in  breaking  the  house  of  J.  S.  But  supposing  the  offence 
to  have  been  described  with  too  little  certainty,  it  should  have  been 
regarded  as  good  cause  for  admitting  the  party  to  bail. 

Independently,  however,  of  the  Habeas  Corpus  Act,  the  court 
of  sessions  by  virtue  of  its  general  powers  in  criminal  matters, 
may  in  term  time  or  at  chambers,  admit  a  prisoner  to  bail,  in  all 
offences  and  felonies  whatever.  It  is  a  great  power,  and  is  to  be 
exercised  with  discretion.  But,  said  Lord  Mansfield  on  applica- 
tion for  bail  in  a  celebrated  case,  "discretion  when  applied  to  a 
court  of  justice,  means  sound  discretion  guided  by  law;  it  must 
be  governed  by  rule,  not  by  humor ;  it  must  not  be  arbitrary,  vague 
and  fanciful,  but  legal  and  regular."  And  here  it  may  not  be 
amiss  to  show  the  practice  of  the  English  courts  on  this  subject. 

One  came  up  on  Habeas  Corpus  charged  with  a  commitment  for 
robbery  on  the  highway,  the  prosecutor  attending  insisted  he  was 
the  man,  and  although  eight  affidavits  of  credible  persons,  proving 
him  to  be  at  another  place  at  the  time  of  the  robbery,  were  read, 
yet  the  court  refused  to  admit  him  to  bail,  and  remanded  him 
until  the  assizes;  2  Strange  1138. 

But  the  court  will  look  into  the  depositions,  and  bail  accordingly ; 
and,  if  committed  for  manslaughter,  yet  if  the  depositions  made  it 
murder,  the  court  will  not  bail,  and  e  converso.    lb.  1242. 

And  in  Rex  v.  Juda,  2  T.  R.  225.  the  discharge  of  the  prisoner 
was  moved  for,  because  the  word  "feloniously"  was  omitted  in  the 
commitment,  which  was  for  a  statutory  offence,  stating  the 
circumstances  supposed  to  create  the  offence.  Ashhurst,  J.,  said, 
"unless  it  appears  on  the  face  of  the  commitment  itself,  that  the 
defendant  is  charged  with  a  felony,  we  are  bound  by  the  habeas 
corpus  act  to   discharge  him.  taking  such  bail   as  we  shall  think 


792  STATE    V.    EVERETT.  §    3 

fit  according  to  the  circumstances  of  the  case;"  and  Groze,  J.,  "it 
would  be  sufficient  if  upon  the  facts  stated  they  could  not  but  see 
that  the  act  was  feloniously  committed;"  in  that  case,  the  circum- 
stances did  not  amount  to  a  charge  of  felony,  and  they  bailed  him. 

But  in  King  v.  ^larks,  3  East  B.  157,  et  al,  where  the  war- 
rant of  commitment  contained  an  insufficient  statement  to  consti- 
tute felony,  and  the  depositions  were  very  full,  and  stated  the  of- 
fence with  sufficient  precision,  the  court  refused  to  bail  and  re- 
manded. 

In  the  exercise  of  this  general  power,  which  in  England  apper- 
tains to  the  court  of  King's  Bench,  and  here  to  the  court  of 
general  sessions,  there  is  no  doubt  that  a  judge  before  whom  a 
prisoner  is  brought,  will  look  beyond  the  commitment,  if  neces- 
sary, and  will  bail,  or  remand,  according  to  circumstances.  And 
in  admitting  to  bail,  he  should  pay  due  regard  to  the  statute  reg- 
ulating bail  and  should  not  admit  to  bail  a  person  who  is  there 
expressly  declared  to  be  debarred  from  it,  without  some  particular 
circumstances  in  his  favor.  He  should  not  undertake  to  determine 
fully  upon  the  gtult  of  a  prisoner  and  set  him  at  liberty,  without 
bail  and  without  day,  however  imperfectly  the  offence  may  have 
been  charged  in  the  commitment,  or  however  strong  the  circum- 
stances in  his  favor,  proved  by  affidavits,  or  collected  from  exam- 
ination. Such  a  power  does  not  exist  in  any  judge,  in  term  time 
or  at  chambers,  where  any  offence  at  all  is  alleged ;  such  a  power 
would  be  superior  to  the  laws,  wherever  lodged.  It  would  to 
all  purposes  be  a  dispensing  power,  as  effectual  and  dangerous  as 
any  that  has  been  claimed  or  exercised  under  the  most  arbitrary 
government. 

We  are  constrained,  therefore,  to  say  that  his  honor  who  heard 
the  motion  at  chambers  exceeded  his  powers  and  decided  erro- 
neouslv,  when  he  discliargcd  the  prisoners  without  trial,  without 
bail  and  without  day ;  that  in  the  utmost  latitude  of  his  discretion, 
he  should  only  have  admitted  them,  to  bail ;  and  as  to  Everett,  that 
in  the  exercise  even  of  that  discretion,  he  should  not  have  been 
bailed  without  strong  circumstances  in  his  behalf,  shown  by  affi- 
davit. 

So  far  as  regards  the  prisoners,  if  proceedings  against  them 
should  go  on,  the  orders  to  discharge  them,  and  the  other  orders, 
are  set  aside  and  annulled. 


§    3  SCOPE  OF  THE   REMEDY.  793 

UNITED  STATES,  REsroNDENT  v.   FOX,   appellant. 
1880.     Supreme  Court  of  ^^Iontana  Territory.     3   Mont.  512. 

(Petitioner  was  indicted  for  embezzlement,  etc.  At  the  No- 
vemHer  term  he  was  tried  on  one  of  the  indictments ;  the  jury 
faiIed__to__a^-ee.  Another  jury  w^as  impaneled,  bnt  one  of  the 
jurors  becoming'  ill,  the  jury  wasdischarged  and  the  .cause  con- 
tinued. At  the  MarcTi  term  petitioner  demanded  trial  but  because 
of  Congress  having  failed  to  make  necessary  appropriations  to 
pay  the  expense  of  serving  process,  the  court  ordered  all  cases  to 
be  continued  at  the  next  succeeding  term. ) 

Wade,  C.  J.     =>=     =p     =>=      inereupon  the  defendant,  after  the  ad- 
iournipent  of  said  March  tenfi  of  cburtT^made  application  to  the 
"judge^gf  said_Xflurt_for  discharge  from  imprisonment  upon  habeas 
cor£?(.y,  which  was  deiTied  and  he  appeals  to  this  court. 

.Xiie-§IS]^llldj-i2on  wllich  the  petitioner  bases  his  right  to  a  dis- 
charge from  imprisonment  is  that  at  the  said  March  term  of  said 
court  he  was  ready  for  and  demanded  a  trial  upon  said  several 
indictriTehts,  and  tliat  the  United  States  being  plaiiitiff  in  the  casesT 
and  charged  with  the  duty  fif  providing  the  necessary  money  there- 
tor,  and  speedily  prosecuting  the  same,  failed,  neglected  and  re- 
Tused  so  to  (In  at  said  March  .term,  whereby  the  defendant  vras 
'cleprived  of  liis   constitutional   right_tq  a   speedy  trial. 

^.  Among  tlic  jirinciplcs  that  adorn  the  connmbn~Taw,  making  it 
the  pride  of  all  English  speaking  people,  and  a  lasting  monument 
to  the  achievements  of  liberty  over  the  encroachments  of  arbitrary 
power,  are  the  following:  No  man  can  he  riglitfully  imprisoned 
except  upon  .a, charge  of  crime  properly  made  in  pursuance  of  the 
Ta\v^  of  the.  laEd-  No  man  when  so  imprisoned  upon  a  law^ful 
charge  presented  in  a  lawfiiT~'rnanner,  specifying  the  crime,  can 
be  arbitrarily  held  without  trial. 
"TTiese  principles'  are  in  accord  wdth  the  enlightened  spirit  of 
the  common  law,  and  form  a  part  of  the  framework  of  the 
English  constitution.  They  are  guaranteed  and  secured  by  Mai^na 
Charta,  the  petition  of  rights,  the  bill  of  rights,  and  by  a  long 
course  of  judicial  decisions,  and  they  belong  to  us  as  a  part  of 
our  inheritance  from,  the  mother  country.  These  rights  were 
claimed  by  our  ancestors  in  Colonial  times,  and  they  have  been 
engrafted  into  and  secured  by  our  constitution  the  supreme  law 
of  the  land,  which,  in  article  six  of  the  amendments,  provides: — 

Art.  VI.  "In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial  jurv  of 
{Tie  state,  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  bv  law.  and 
to  be  informed  of  the  nature  and  cause  of  the  accusation ;  to  be 
confronted   with  the   witnesses   against  him ;  to  have   compulsory 


794  UXITEL)    STATES    V.    FOX.  §    3 

process  for  obtaining  witnesses  in  his  favor ;  and  to  have  the  as- 
sistance of  counsel  for  his  defense.'' 

Within  the  meaning  of  this  article,  of  the  constitution,  what 
is  a  speedy  trial? 

At  the  time  of  the  adoption  of  the  constitution,  the  common 
law  was  in  force  in  this  country  so  far  as  applicable,  and  the 
terms  used  in  that  instrument  ought  to  be  construed  with  reference 
to  their  common  law  meaning. 

Some  idea  of  the  term,  "speedy  trial"  at  common  law  may  be 
q-athered  from  that  fact  that  by  that  law,  in  order  to  insure  the 
trial  of  all  prisoners  within  a  certain  time,  a  patent  in  the  nature 
of  a  letter  is  issued  from  the  king  to  certain  persons  appointing 
them  his  justices,  and  authorizing  them  to  deliver  his  jails.  Bouv. 
Law  Diet,  title  Gaol  Delivery. 

The  jails  are  thus  cleared  and  all  ofitenders  tried,  punished  or 
delivered  twice  in  everv  vear,  2  Blacks.  Com.  Book  IV,  270,  Shars. 
Ed. 

Ancl  so  it  is  but  a  reasonable  inference  that,  at  common  law, 
it  the  proseciition,~T3v~"its"  neglect  and  laches,  fails  to  prosecute, 
'and  thereby  detains  a  prisoner  in  jail,  who  ought  but 'foT~m(:rh 
ncirlcct  to  have  been  tried,  such^e.tention  would.. be  the.  dsilial  of 
a  ^]»(,(.ilv  trial.  By  the  common  law  the  jails  are  cleared  twice  in 
each  year  in  order  to  secure  to  the  prisoners  therein  confined  a 
speedy  trial,  and  if  by  the  neglect  of  the  prosecution,  to  prepare 
for  trial  they  are  imprisoned  for  a  longer  period  than  the  law 
contemplates,  this  would  be  the  denial  of  a  speedy  trial. 

Neither  the  constitution  nor  any  law  of  congress,  so  far  as  I 
have  been  able  to  ascertain,  fixes  the  time  within  which  a  person 
accused  of  crime  and  imprisoned  shall  be  tried.  But  both  the 
constitution  and  the  law  contemplate  that  a  trial  shall  be  had, 
after  the  lapse  of  such  time  as,  in  the  exercise  of  reasonable  dili- 
gence, may  be  required  to  prepare  for  trial.  The  adjudications 
upon  this  subject  are  not  numerous,  but  a  resort  to  general  prin- 
ciples and  the  spirit  of  the  law  renders  the  problem  easy  of  solu- 
tion. 

The  law  guards  with  jealous  care  the  rights  of  a  person  charged 
Vi'ilh  crime,  and  with  equal  care  the  right  of  the  people,  as  a 
matter  of  security  and  safety,  to  have  crime  punished.  Every 
step  in  a  criminal  prosecution  must  be  according  to  law.  There 
must  be  an  indictment  found  and  presented  1)y  a  lawful  grand 
jury  specifying  (he  precise  charge  to  be  tried.  The  accused  shall 
be  i)roviflcd  with  counsel  either  by  himself  or  the  government, 
and  he  shall  have  the  process  of  the  court  to  compel  the  attend- 
ance fif  his  witnesses.  TTc  is  to  be  afforded  an  opportunity  to 
prcparr  fr)r  his  trial  before  an  impartial  jury,  and  when  thus  pro- 
vided   with   all   these   means   to   secure   a    fair   trial,    if   he,   by   his 


§    3  SCOPE  OF   TILE  REMEDY.  795 

neglect,  fails  or  refuses  so  to  do,  he  cannot  have  the  same  post- 
poned, or  put  over  because  he  is  not  ready  for  trial. 

And  so  on.  the  other  hand  the  law  will  not  tolerate  any  neg- 
lect or  laches  on  the  part  of  the  prosecution  in  bringing  a  defend- 
ant to  trial.  Especially  is  this  the  case,  and  the  principle  applies 
""witli  stronger  force,  jf  the  person  charged  with  the  crime  is  in 
prison  demanding  a  trial,  and  sufficient  time  has  elapsed  since 
Tlie  finding  of  the  indictment,  to  enable  the  prosecution,  in  the 
5'xercise  of  reasonable  diligence,  to  be  ready  for  trial.  A  person 
charged  with  crime,  whether  in  prison  or  on  bail,  has  the  right  to 
demand  diligence  on  the  part  of  the  prosecution,  to  the  end  that 
he  may  speedily  know  whether  he  is  to  be  convicted  or  acquitted. 

A  criminal  case,  like  a  civil  case,  may  be  continued  from  one 
term  to  another  when  it  satisfactorily  appears  that  the  party  asking 
for  the  continuance  has  used  reasonable  diligence  to  be  prepared 
for  trial,  and  has  failed,  but  in  the  absence  of  reasonable  diligence, 
on  the  part  of  the  party  asking  for  the  continuance,  the  opposite 
party  may  ask  and  insist  upon  a  trial,  even  though  such  trial  must 
necessarily  result  in  an  acquittal  of  the  person  charged  with  the 
crime.  If  the  prosecution  or  defendant  are  not  ready  for  trial 
after  the  lapse  of  a  reasonable  time  in  which  to  get  ready,  they 
must  first  relieve  themselves  of  any  neglect  or  laches  before  they 
can  ask  for  a  postponement  of  the  trial. 

The  speedy  trial,  to  wliich  a  person  charged  ivith  a  crime  is 
entitled  under  tJic  constitution,  is  then,  a  trial  at  such  a.timej 
after  the  finding  of  the  indictment,  regard  being  had  to  the  terms 
of  court,  as  shaU  afford  the  prosecution  a  Reasonable  opportunity, 
T'x  t!ic  fair  and  honest  exercise  of  reasonable  diligence,  to  prepare 
for  trial;  and  if  the  trial  is  postponed  or  delayed  beyond  such- 
yeri&d;  zvhen  there  is  a  term  of  court  at  zvhich  the  trial  might  be' 
ifad'f'Fy' reason  of  the  neglect  or  laches  of  the  prosecution  in  prr- 
furmg'f'Dr  trial,  such  a  delay  is  a  denial  to  the  defendant  of  his 
right  to  a  speedy  trial. 

In  Ex  parte  Stanley,  4  Nev.  116,  the  court,  in  defining  the  mean- 
ing of  the  term  "speedy  trial"  says:  "But  what  is  to  be  under- 
stood by  a  speedy  trial  is  the  embarrassing  question  now  to  be 
determined.  It  is  very  clear  that  one  arrested  and  accused  of 
crime  has  not  the  right  to  demand  the  trial  immediately  upon  the 
accusation  or  arrest  being  made.  He  must  wait  until  a  regular 
term  of  the  court  having  jurisdiction  of  the  ofifense  with  which 
he  is  charged,  until  an  indictment  is  found  and  presented,  and 
until  the  prosecution  has  had  a  reasonable  time  to  prepare  for  the 
trial.  Nor  does  a  speedy  trial  mean  a  trial  immediately  upon  the 
presentation  of  the  indictment  or  the  arrest  upon  it.  It  sim.ply 
means  that  the  trial  shall  take  place  as  soon  as  possible  after  the 
indictment  is  found,  without  depriving  the  prosecution  of  a  rea- 


796  UNITED    STATES    V.    FOX.  §    3 

sonable  time  for  preparation.  The  law  is  the  embodiment  of  reason 
and  good  sense,  hence,  whilst  it  secures  to  every  person  accused 
of  crime  the  right  to  have  such  charge  speedily  detennined  by  a 
competent  jury,  it  does  not  exact  impossibilities,  extraordinary 
efforts,  diligence  or  exertion  from  the  courts,  or  the  representa- 
tives of  the  state ;  nor  does  it  contemplate  that  the  right  of  a  speedy 
trial  which  it  guaranteed  to  the  prisoner  shall  operate  to  deprive 
the  state  of  a  reasonable  opportunity  of  fairly  prosecuting  crim- 
inals." 

In  the  case  of  Klock  v.  People,  2  Park.  676,  the  defendant  was 
put  upon  his  trial  for  the  crime  of  arson.  During  the  progress 
of  the  trial  the  prosecution  offered  certain  evidence  to  which  the 
counsel  for  the  prisoner  objected,  and  the  objection  was  sustained, 
whereupon,  on  motion  of  the  attorney  prosecuting,  and  without 
the  consent  and  against  the  objection  of  the  accused,  a  juryman 
was  Avithdrawn  and  the  jury  discharged.  At  the  ensuing  term  the 
attorney  prosecuting  again  moved  the  trial  of  the  indictment,  and 
the  defendant  as  a  plea  in  bar  set  up  the  foregoing  facts.  On 
demurrer  the  plea  was  held  insufficient,  and  the  appellate  court, 
in  reversing  this  decision,  says : — "The  real  question  is,  whether 
it  is  allowable  for  a  public  prosecutor  after  having  entered  upon 
his  case  by  the  giving  of  evidence  to  a  jury  impaneled  for  the 
trial  of  an  indictment,  to  withdraw  a  juror  and  thus  arrest  the 
trial,  so  as  to  enable  him  to  try  the  party  at  a  subsequent  time, 
solely  because  he  finds  himself  unprepared  with  the  proper  evi- 
dence, to  convict,  when  his  condition  is  not  the  result  of  improper 
practice  on  the  part  of  the  defendant,  or  someone  acting  with 
?nd   for  him,  or  some  overruling  inevitable  necessity." 

Counsel  for  the  people  insisted  that  the  accused  could  not  ob- 
ject to  a  second  trial  for  the  reason  that  his  case  did  not  come 
within  the  constitutional  provision  which  declares  that  "no  person 
shall  twice  be  put  in  jeopardy  for  the  same  offense"  (art.  i,  §  6), 
and  the  court  says : — "The  plaintiff  in  error  has  not  been  once 
tried  so  as  to  bring  himself  within  the  constitutional  protection, 
as  no  verdict  or  judgment  has  been  given.  The  true  ground  of  the 
objection  lies  back  of  the  constitution,  and  is  found  in  the  prin- 
ciples which  have  been  deemed  essential  to  the  full  and  fair  pro- 
tection of  individuals  accused  of  crime,  and  to  secure  to  them  a 
speedy  and  impartial  trial  and  the  best  means  of  indicating  their 
innocence,"  and  the  decision  of  the  court  below  in  sustaining 
the  demurrer  to  the  plea  in  bar  was  reversed  and  the  prisoner 
<lischarged. 

The  analogies  of  this  case  to  have  a  l>caring  upon  the  one  we  are 
considering.  If  asking  for  and  obtaining  the  postponement  of  a 
criminal  case,  for  the  reason  that  the  prosecutor  suddenly,  during 
the   progress   of   the   trial,    found    himself   unprepared    to   proceed. 


§    3  SCOPK   OF   THE    REMEDY.  797 

because  the  evidence  he  had  ofifered  had  been  excluded  from  the 
jury,  was  a  denial  to  the  accused  of  a  speedy  trial,  then  certainly 
it  would  be  a  denial  of  a  speedy  trial  if  the  prosecution  (the 
United  States  in  this  case)  had  failed  and  neglected  not  only  to 
offer  any  evidence  whatever,  but  to  secure  the  attendance  of  any 
witnesses  in  the  case.  In  the  case  referred  to  there  was  an  at- 
tempt in  good  faith  to  have  a  trial.  In  the  case  we  are  considering, 
a  whole  term  of  court  passed  without  an  attempt  or  effort  what- 
ever on  the  part  of  the  prosecution  to  bring  the  case  to  a  trial. 
The  indictments  were  found  at  the  November  term  1879,  and  two 
trials  were  had  at  that  term,  which  resulted  in  mistrials.  At  the 
ensuing  March  term  the  prosecution  failed  and  neglected  to  bring  the 
cases  to  trial,  and  made  no  efifort  whatever  in  that  direction.  The 
government  failed  entirely  to  provide  any  means  for  paying  the 
expenses  of  serving  process,  and  entirely  neglected  and  refused  to 
procure  the  attendance  of  witnesses  on  the  part  of  the  prosecution. 
It  did  no  more  than  as  though  these  indictments  had  not  been 
pending  against  the  defendant. 

The   prosecution   was   guilty   of   laches   and   a   neglect   of   duty, 

in*"^"" failing  and   refusing  to  prosecute,   and   such   failure  was   a 

■"denial  to  the  defendant  of  his  constitutional  right  to  a  speedy  trial. 

■^he   government'  oT  "the  TJii'Sed    States   cannot   cast   a   man   into 

prison  and  then  fold  its  arms  and  refuse  to  prosecute. 

And  it  is  notjiiaterial  to  inquire  for  what  reason  the  government 
failed  and  neglected  to  prosecute  these  indictments,  or  why  the 
^appropriations  of  money  to  enable  marshals  to  serve  process  failed 
m  Congress.     The  fact  is  sufficient  for  the  purposes  of  this  case. 

The  prayer  of  the  petition,  is  granted  and  the  petitioner  dis- 
charged from  custody  and  imprisonment.         ~  '  ' 

See  also  Stange,  Ex  parte,  59  Cal.  416;  Bryant,  Ex  parte,  34  Ala.  270; 
Randon,  Ex  parte,  12  Tex.  App.  145 :  Commonwealth  v.  Keeper,  etc.,  2 
Ashm.  (Pa.)  227;  People  v.  Tinder,  19  Cal.  539;  People  v.  Bowe,  58  How. 
Pr.  (N.  Y.)  393;  Jones,  Ex  parte,  20  Ark.  9;  State  v.  Field,  112  Mo.  554; 
Turner,  Ex  parte,  36  Mo.  App.  75;  Bridewell,  Ex  parte,  57  Miss.  39;  Cowel! 
V.  Patterson,  49  Iowa,  514. 


UNITED  STATES  v.  LAWRENCE. 

1835.  Circuit  Court,  District  of  Columbi.a.     4  Cranch   C.  C. 
518;  26  Fed.  Cas.  887,  No.   15.557. 

On  the  30th  of  January.  1835,  the  prisoner.  Richard  Lawrence, 
made  an  assault  upon  the  President  of  the  United  States  (General 
Jackson)  with  intent  to  murder  him,"  by  shooting  him  with  a  pistol 
as  he  came~ouf~of  the  rotuncTa  of  t'Ke'capitol.  after  having  attended 


798  UNITED  STATES  V.   LAWRENCE.  §    3 

the  funeral  service  of  \\'arran  R.  Davis,  a  member  of  the  house 
of  representatives.  Both  pistols  missed  fire,  although  the  percus- 
sion caps  of  both  exploded,  and  both  were  well  loaded  with  powder 
and  ball.  He  was  arrested  in  the  very  act,  and  was  immediately 
brought  before  the  chief  judge  at  his  chambers.  The  assault  with 
intend:  to  kill  was  proved  by  the  clearest  kind  of  evidence.  There 
was  no  evidence  then  produced  of  his  insanity.  The  prisoner's 
manner  was  calm,  and  he  seemed  indifferent  as  to  the  testimony ; 
declined  cross-examining  the  witnesses,  and  when  informed  by  the 
chief  judge  that  he  might  make  any  remarks  which  he  thought 
proper  to  make,  said  he  could  not  contradict  what  the  gentlemen 
had  said.  After  inquiring  as  to  his  property  and  circunnstances, 
the  chief  judge  said  to  Mr.  Key,  the  district  attorney,  that  Tie 
supposed  bail  in  $i,ooo  would  be  sufficient,  as  it  was  not  a  peni- 
tentiary offence,  there  being  no  actual  battery,  and  as  he  did  not 
appear  to  have  any  property.  ]\Ir.  Key  seemed  at  first,  to  acquiesce, 
but  having  conversed  with  some  of  the  president's  friends  who 
stood  round  him,  he  suggested  the  idea  that  it  was  not  impossible 
that  others  might  be  concerned  who  might  be  disposed  to  bail 
him,  and  let  him  escape  to  make  another  attempt  on  the  life  of 
the  president,  and  therefore  thought  that  a  larger  sum  should 
be  named.  The  chief  judge  then  said  there  was  no  evidence  be- 
fore him  to  induce  a  suspicion  that  there  was  any  other  person 
concerned  in  the  act ;  that  the  constitution  forbade  him  to  require 
excessive  bail;  and  that  to  require  larger  bail  than  the  prisoner 
could  give,  zvould  be  to  require  excessive  bail,  and  to  deny  baih 
in  a  case  clearly  bailable  at  lazu.  i  Chitty  Criminal  Law,  131. 
That  the  discretion  of  the  magistrate  in  taking  bail  in  a  criminal 
case,  is  to  be  guided  by  the  compound  consideration  of  the  ability 
of  the  prisoner  to  give  bail,  and  the  atrocity  of  the  offence.  That 
as  the  prisoner  had  some  reputable  friends  who  might  be  disposed 
to  bail  him,  he  would  require  bail  in  the  sum  of  $1500.  This  stmi, 
if  the  ability  of  the  prisoner  only  were  {<>  br  considered  is,  prdbaiily 
too  Targe';"  but  if  the  atrocity  of  the  offence  alone  were  to  be 
considered,  might  seem  too  small ;  but  taking  both  into  consider*- 
tlon,  and  that  the  punishment  can  only  be  fine  and  imprisonment^ 
it  cecmed  to  him  that  it  was  as  high  as  he  ought  to  require.  The 
prisoner  not  being  able  to  find  bail  to  that  amount  was  conimjtted 
■for  trial,  by  warrant  of  the  chief  judge.     "'     '*'     * 

(So  much  of  report  of  proceedings  in  habeas  corpus  to  secure 
prisoner's  release  on  ground  of  his  insanity,  and  refusal  of  peti- 
tion for  said  writ  is  omitted.) 


§    3  SCOPE  OF   THE   REMEDY-  799 

Ex  PARTE  DUNCAN. 
1879.     Supreme  Court  of   California.     54  Cal.   75. 

By  the  court,  Walla.ce,  C.  J. : 

This  is  an  application  for  an  order  that  the  prisoner  be  let  to 
bail  "in  a  reasonable  amount"  and  that  the  order  of  the  Municipal 
Criminal  Court,  fixing  the  amount  of  his  bail  at  $113,000,  be  modi- 
fied in  respect  to  the  sum  demanded. 

Til?  P-?t^tion  sets  .f^orth  that  the  prisoner  is  in  the  custody  of 
the  sheriff  of  the  city  and  county  of  San  Francisco,  and  confined 
"nTTITeTail  of  said  city  and  county,  awaiting  his  trial  upon  ten  in- 
dictments, found  against  him  by  the  grand  jury,  '*^ight  of  said  in- 
ctiutmehts  being  for  forgery,  one  for  grand  larceny,  and  one  for 
felony  in  making  and  publishing  false  returns  as  an  officer  of 
the  Pioneer  Land  and  Loan  Association,  a  corporation."  That 
one  of  the  indictments  for  forgery  is  upon  a  charge  involving  the 
sum  of  $2,750;  another,  for  forgery,  involving  the  sum  of  $1,750; 
the  other  six  indictments  for  forgery  committed  in  feloniously  al- 
tering and  uttering  3170  shares  of  the  capital  stock  of  a  corpora- 
tion called  "The  Safe  Deposit  Company  of  San  Francisco ;"  that 
the  market  value  of  these  shares  at  the  time  of  the  finding  of  the 
indictments  was  about  eight  dollars  per  share,  and  at  the  present 
time  about  ten  dollars  per  share.  That  upon  one  of  the  indict- 
ments for  forgery  of  said  capital  stock  the  prisoner  has  been  twice 
tried,  and  upon  each  trial  the  jury  disagreed,  and  were  discharged 
without  finding  a  verdict.  That  upon  said  trials  it  was  claimed  bv 
the  witnesses  for  the  prosecution,  holding  the  certificates  of  stock 
for  the  forgery  of  which  six  of  these  indictments  were  found, 
that  the  prisoner  had  obtained  upon  said  certificates  the  sum  of 
$57,000  and  no  more.  That  the  prisoner  has  been  confined  in 
the  jail  awaiting  trial  upoiTThese'liTTttrTfficMits  ever  since  the  23d 
'day  of  Fe1)rnar}-.  1S78,  and  that  no  trial  lias  been  sought  by  the 
people,  upon  any  of  the  indictments  other  than  the  one  upon 
Whrch"  tbejt wo  mis-trials  have  occurred. 

"TsE     The_right   of    the    ])ri^Mner    to    be    admitted    to    bail    upon 
these  several  indictments,  none  of  them  being  for  a  felony  capital 
'TfTgrade,  is  secured  to  him  by  the  express  words  of  the  consti- 
tutjoji.     (Art.  i,  §  6).      ■ 

2nd.  And  it  is  further  declared  by  that  instrument  that  ex- 
cessive bail  shall  not  be  required.  (Id.) 

3rd.  The  pr jsoner  Jhas_accQr.dingly  .  been  admitted  to  bail_by 
the  Atimicipal  Criminal  Court  in  the  sum  of  one  huncfrecr^nd 
fliirteen  thousand  dollars,  and  the  general  question  presented'  by 
the  petition  here  is.  whether  this  amount  is.  under  the  circum- 
"stances,  to  be  deemed  excessive  within  the  terms  and  prohibition 
of  the  constitution,  and  must  therefore  be  reduced. 


8oO  EX   PARTE  DUNCAX.  §    3 

7 lie  sole  purpose  zchicJi  should  guide^  the  court  or^iiiilgeiin 
fiTtiTg  the  amount  of  bail  in  any  case  in  which  bailis  allozved  should 
always  br  to  sccttre  the  personal  appearance  of  the  accuscji.Ml 
ansii'er  the  charge  as  against  Jiini.  It  is  not  the  intention  of  the 
law  to  punish  an  accused  person,  by  imprisoning  him  in  advance 
of  his  trial.  Such  inhumanity  or  injustice  as  inflicting  punishment 
upon  him  before  his  guilt  has  been  ascertained  by  legal  means, 
is  not  to  be  imputed  to  the  system  of  law  under  which  we  live, 
and  the  provisions  found  in  the  American  constitutions,  establish- 
ing the  writ  of  habeas  corpus,  securing  to  accused  persons  im- 
prisoned for  felonies  less  than  capital  in  degree  the  absolute  right 
to  be  admitted  to  bail,  and  declaring  that  such  bail  shall  not  be 
excessive,  strikingly  indicate  the  extreme  jealousy  with  which  the 
common  law  guards  the  personal  liberty  of  the  citizen  from  un- 
warrantable or  unnecessary  restraint. 

4th.  But  I  am  unable,  after  a  careful  examination  of  the  cir- 
cumstances surrounding  this  case,  so  far  as  they  have  been  pre- 
sented to  me,  to  arrive  at  the  conclusion  that  the  amount  of  bail 
required  of  the  prisoner  is  excessive.  The  able  counsd  _for_tlie 
prisoner  who  has  exhausted  every  means  that  mgemufy  and  learn- 
'ifff^rdulcl  suggest  for  the  relief  of  his  client,  argues  that  the  mere 
fact  that  the  prisoner  is  unable  to  procure  the  bail  demanded  of 
him  shows  that  it  is  excessive  in  amount,  and  should  therefore  be 
reduced.  But  I  am  unable  to  assent  to  that  proposition.  Un- 
doubtedly the  extent  of  the  pecuniary  ability  of  a  prisoner  to  fur- 
nish bail  is  a  circumstance  among  other  circumstances  to  be  con- 
sidered m  fixing  the  amount  in  which  it  is  to  be  required,  but  it 
is  not  in  itself  controlling.  If  the  position  of  the  counsel  were 
correct,  then  the  fact  that  the  prisoner  had  no  means  of  his  own, 
and  no  friends  who  were  willing  or  able  to  become  sureties  for 
him,  even  in  the  smallest  sum,  would  constitute  a  case  of  excessive 
bail,  and  would  entitle  him  to  go  at  large  upon  his  own  recog- 
nizance. 

Upon  a  former  occasion  (January  term  1879)  the  prisoner  ap- 
plied to  the  supreme  court  for  an  order  reducing  the  amount  of 
his  bail,  and  the  application  was,  upon  consideration  by  all  the 
justices,  refused.  (Ex  parte  Duncan,  S3  <^a].  410.)  Unless  the 
circumstances  now  disclosed  make  a  case  materially  different  from 
the  case  then  made  to  ap|)oar,  T  should  be  disinclined  to  depart 
from  what  was  then  determined.  We  then  said  (and  I  think  that 
it  may  with  y)ropriety  be  repeated  now)  as  follows: —  "The  ques- 
tion is  not  whejthcr  .we  would  have  exacted ^o_great  a  sum  in  tYie 
'first  instance,  had  the  proceedings  to  let  him  to^jll.-J>££l]i  originally 
iH'forc  us — in  other  words  the  inquiry  is  not  whether  a  mere  ditfer- 
onro  of  opinion  may  have  been  developed  between  this^xourt  and. 
the  Muniriprd  Triminal  Tourl   as  to  tho  amount  of  bail  to  be  .ex- 


§    3  SCOPE  OF   THE   KE.MEDN'.  8oi 

acted  in  this  case.     We  are  imt   to  assume  in  this  case,  the  func- 
tions "oT'tfie  "court    cunnnittint;-    the    prisoner,    or    substitute    our 

'-u^n~fbr  its  judgment  in  fixing-  the  amount  of  bail.  Before  we  are 
a"lTt11T5'rized  to  interfere,  the  bail  demanded  must  be  per  se  unrea- 
sonably great,  and  clearly  disproportionate  to  the  offense  involved." 

—  Adhering  as  I  do  to  the  views  then  expressed,  it  remains  to 
inquire  what  circumstances,  if  any,  now  disclosed,  present  a  case 
materially  different  from  the  one  then  presented.  The  fact  that 
two  trial  juries  have  been  impaneled  and  after  hearing  the  evi- 
dence and  the  instructions  of  the  court,  have  disagreed  and  been 
discharged,  without  rendering  a  verdict,  is  relied  on  as  furnishing 
a  new  element  of  the  judgment  to  be  now  given.  But  unless  I  could 
know  with  certainty  what  evidence  was  given  upon  these  trials, 
the  fact  that  a  disagreement  in  the  jury  box  had  repeatedly  oc- 
curred would  not  go  far  to  induce  me  to  undo  now  what  has 
been  done  here  before  in  this  case.  The  significance  to  be  at- 
tributed to  these  disagreements,  would  be  conjectural  merely.  One 
stupid  or  corrupt  juror,  upon  either  panel  might  produce  a  dis- 
agreement, even  though  the  law  and  the  evidence  were  clearly 
against  the  prisoner.  As  observed  by  the  supreme  court  of  Ohio, 
"One  obstinate  or  corrupt  person  in  a  body  of  twelve  will  be  more 
com'monly  successful  in  preventing  a  verdict  than  insufficient  tes- 
timony." (lO  Ohio  140.)  Of  course  I  am  not  to  be  understood 
as  implying  a  reflection  upon  the  gentlemen  who  served  as  jurors 
at  these  trials.  I  do  not  know  who  they  were,  and  in  this  proceed- 
ing am  not  permitted  to  know.  Again,  the  learned  judge  of  the 
court  in  which  these  disagreements  occurred,  who  presided  at 
the  trials  and  heard  the  evidence  given  has,  since  then,  upon  ap- 
plication made,  refused  to  reduce  the  amount  of  bail  originally 
fixed  by  him.  He  had  heard  the  evidence,  and  had  enjoyed  re- 
peated opportunities  to  observe  its  import,  and  I,  who  have  had 
no  such  opportunity,  can  hardly  be  expected  to  overrule  his  judg- 
ment, as  to  the  fair  import  of  that  evidence.  His  refusal  to  re- 
duce the  amount  of  bail,  under  the  circumstances,  is  at  least  of  as 
much  significance  on  the  one  hand'  as  is  the  disagreement  of  the 
juries  upon  the  other. 

5th.  It  is  next  claimed  that  the  amount  of  bail  required  is 
excessive,  because  dispfoportTohateto  the  amount  which  the  pris- 
oner is  alleqrd  to  have  obtained  as  the  fruits  of  his  crimes.  The 
authorities  qcnerally  hold,  that,  if  the  accused  has  property  ob- 
tained by  the  commission  of  the  crime,  the  bail  should  be  for  a 
larger  amount  than  the  value  of  such  property ;  otherwise,  the 
offender  might  make  the  crime  itself  an  instrument  for  escape. 
This  is  rather  indicating  the  minimum  amount  of  bail  to  be  re- 
quired than  determining  that  an  amount  greater  than  the  value 
of  the  property  obtained  would  be  excessive  in  the  sense  forbidden 
hv  the  constitution.     It  is  said   for  the  prisoner,  that  at  the  time 


802  EX    PARTE    KAINE.  §    3 

of  the  indictment,  the  vak:e  of  the  forged  stock  was  $29,860,  and 
its  present  value  $31,700,  and  that  $113,000  the  bail  demanded,  is 
therefore  disproportionate  to  the  amount  taken  by  the  prisoner. 
But  if  the  inquiry  is  to  be  gone  into  in  detail,  it  does  not  dis- 
tinctly appear  by  the  petition  what  was  the  sum  involved  in  the 
indictment  for  grand  larceny,  nor  what  sum,  if  any,  was  realized 
by  the  prisoner,  by  reason  of  the  making  of  false  returns  as  an 
ofiicer  of  the  Pioneer  Land  and  Loan  Association.  Besides,  it 
was  suggested  at  the  argument  upon  the  part  of  the  people,  that, 
in  some  way,  twelve  hundred  thousand  dollars  of  the  money  of 
the  depositors  of  the  association  had  disappeared,  through  the 
criminal  mismanagement  of  the  prisoner. 

Upon  the  entire  case,  therefore,  so  far  as  I  am  permitted  to 
looTc  ifito  it  on  this  application,  and  in  view  of  the  judgment 
given  by  the  supreme  court  on  the  former  application,  already 
referred  to,  I  find  myself  unable  to  reach  the  conclusion  that  the 
bail  demanded  of  the  prisoner  here  is  excessive,  or  ought,  'for* •any 
reason,  to  be  reduced  by  my  direction. 

In  view  of  the  notoriety  which  the  case  of  the  prisoner  has 
attained,  and  to  prevent  possible  injustice  to  him,  I  think  it  not 
improper  to  observe  that  his  repeated  failures  before  the  supreme 
court  and  before  myself,  to  obtain  a  reduction  of  bail,  ought  not 
to  be  suffered  to  create  an  impression  of  his  guilt  in  point  of 
fact.  We  are  not  at  liberty  in  proceedings  of  this  nature,  to  in- 
vestigate that  question.  On  the  contrary,  we  are  bound  by  the 
settled  rules  of  law,  as  the  basis  of  our  judgment,  upon  this  appli- 
cation, to  presume  him  guilty.     {Ex  parte  Ryan,  44  Cal.  555.) 

It  results  that  the  petition  must  be  denied,  and  the  prisoner 
remanded.     So  ordered. 

That  the  imposition  of  excessive  bail  is  equivalent  to  the  denial  of  bail 
and  to  be  remedied  on  habeas  corpus,  see:  Evans  v.  Foster,  i  N.  H. 
374:  United  States  v.  Brawner,  7  Fed.  86;  Jones  v.  Kelly,  17  Mass.  116; 
McConnell  v.  State,  13  Tex.  App.  390;  Williams,  In  re,  82  Cal.  183;  State 
V.  Aucoin,  47  La.  Ann.  1677. 


7.     Habeas  corpus  in  Extradition  cases. 

a. — International. 

Ex  PARTE  KATNE. 

i«53.    U.  S.  Circuit  Court,  S.  D.  New  York.     3  Blatchf.  i;  14 
Fed  Cas.  78,  No.  7,597. 

N'elson,  Circuit  Judge. — The  prisoner  was  originally  appre- 
hended on  the  15th  day  of  June,  1852,  on  a  warrant  Issued  By" 
Commissioner    Bridgham,    under    the    treaty    between    the    United 


§    3  SCOPE  OF   THE   REMEDY.  803 

States  and  Great  Britain,  on  the  9th  of  August,  1842  (8  Stat. 
572),  on  the  application  of  Mr.  Barclay,  the  British  consul  at 
the  poVt  of  New  York,  upon  a  charge  of  assault  upon  the  person 
of  James  Balfe,  in  IreTan(37  wilTi  the  intent  to  murder.  Upon 
hearing  the  allegations  and  the  proofs,  the  commissioner,  on  the 
29th  of  June  following,  found  him  guilty'oF the  charge,  and  di- 
rected that  he  be  detained  in  custody,  in  "pursuance  of  the  provis- 
vons  of  the  treaty,  to  abide  the  order  of  the  president  of  the 
"tJnited  States.  Oh  the  first  of  July  a  writ  of  habeas  corpus  was 
sued  out  by  the  prisoner,  returnable  before  the  United  States 
Circuit  Court  for  the  southern  district  of  New  York,  the  Hon- 
orable Sam.  R.  Betts,  district  judge,  presiding,  founded  upon  an 
alleged  illegal  detention  under  the  warrant  of  the  commissioner. 
Upon  a  return  to  the  writ  by  the  marshal,  and  a  review  of  the 
proceedings  that  had  taken  place  before  the  commissioner,  the 
court,  after  consideration,  held  them  to  be  legal  and  valid,  and, 
on  the  9th  of  the  same  month,  dismissed  the  writ  and  remanded 
the  prisoner  to  the  custody  of  the  marshal,  under  the  previous 
order  of  commitment  by  the  commissioner.  (Case  No.  7598.) 
On  the  17th  of  July  following,  the  proceedings  having  been  for- 
warded to  the  proper  authorities  at  Washington,  the  acting  sec- 
retary of  state  issued  his  warrant  directing  that  the  prisoner  be 
surrendered  and  delivered  up  to  Mr.  Anthony  Barclay,  her  Britannic 
Majesty's  consul.  At  this  stage  of  the  proceedmgs  an  application 
was  made  before  me,  at  chambers  for  a  writ  of  habeas  corpus. 
to  bring  up  the  prisoner,  upon  an  illegal  detention  and  imprison- 
ment, which  I  refused  until  the  whole  of  the  proceedings  that  had 
taken  place  before  the  commissioners  and  the  circuit  court  should 
be  laid  before  me.  These  were  subsequently  furnished,  and  upon 
a  full  and  complete  consideration,  I  became  convinced  tha.t,_tlie 
commissioner  possessed  no  jurisdiction  over  the  case,  and  that  the 
"proceedings  were,  in  other  respects,  irregular  and  not  warranted' 
by  law.  But,  instead  of  discharging  the  prisoner  dififering  iii 
opinion,  as  I  did,  from  my  brother  in  the  circuit  court,  and  deem- 
ing some  of  the  questions  involved  of  sufficient  magnitude,  and 
public  interest,  to  justify  the  submission  of  them  to  the  highest 
judicial  tribunal  in  the  government,  I  adjourned  the  case  until 
the  next  term  of  the  supreme  court  of  the  L'nited~S'tates  in  accorcT- 
ahce  with  the  established  practice  in  the  King's  bench  of  England 
In  similar  cases.  Case  (7597  a).  That  court  after  argument 
and  due  consideration,  and  for  reasons  which  were  satisfactory 
to  me,  distinguished  the  adjournment  of  the  case  from  chambers 
to  the  term  from  a  similar  proceeding  in  the  king's  bench,  on 
account  of  the  limited  jurisdiction  of  the  supreme  court  in  original 
proceedings,  their  powers  being  mostly  appellate,  and  consequently 
dismissed   the  adjourned  case   for  want  of  jurisdiction.     The  case 


804  EX    PARTE    KAIXi..  §    3 

was,  however,  presented  to  the  court  in  another  form.  An  appli- 
cation was  made  for  it  directly  by  the  prisoner  for  a  writ  of 
Jwbcas  corpus,  the  application  being-  accompanied  by  the  pro- 
ceedings that  had  taken  place  before  the  commissioner  and  the 
circuit  court.  .But  the  questions  involved  failed  to  meet  a  judicial 
determination,  in  consequence  of  a  serious  diversity  of  opinion 
among  the  members  of  the  court,  a  majority  of  my  brethren  not 
concurring  in  the  interpretation  to  be  given  to  the  treaty  and  the 
act  of  congress  passed  in  pursuance  thereof,  nor  in  respect  to  the 
jurisdiction  of  the  commissioner  under  whose  order  the  prisoner 
had  been  committed  for  the  purpose  of  his  surrender  to  the  British 
authorities.  The  application  was  consequently  denied,  and  an  order 
entered  dismissing  the  petition.  The  case  before  me,  therefore, 
tog-ether  with  the  questions  involved  on  the  return  of  the  mar- 
shal to  the  writ  of  habeas  corpus,  which  were  adjourned  to  the 
supreme  court,  having  been  dismissed  for  want  of  jvtrisdiction,  or 
rather  not  having  been  entertained  for  want  of  it,  necessarily,  re- 
mained for  a  final  hearing  at  chambers,  as  the  prisoner  was  in 
custody  under  the  authority  of  that  writ,  and  must  continue  in  such 
custody  until  discharged,  or  else  be  remanded  for  the  purpose  of 
being  dealt  with  as  directed  by  the  former  commitment.  The 
hearing  at  chambers  upon  the  return  was  adjourned,  accordingly, 
to  the  first  Monday  of  this  month,  and  the  counsel  on  both  sides, 
being  advised  thereof,  have  appeared  and  submitted  their  argu- 
ments upon  the  several  questions  arising  in  the  case. 

The  learned  counsel  appearing  on  behalf  of  the  British  author- 
ities  ims  H^ijcct'cd  thaf  The  decl'sion  o t^  J  u(lge"~BigttSfr"srtting  in  the 
circuit  court,  upon  the  return  to  tKe  wnCofJiaUeas  corpus  before 
that  court,  it  being  a  court  of  competent  jurisdiction  to  hear  and 
determine  the  question  whether  the  commitment  under  the  com- 
missioner's order  or  warrant  was  legal  or  not,  js_conc]usive,  and 
a  bar  to  ailiL.subsec[uent  inquiry,  in  to  the  same  matte rs^.l^LvifKj^e 
oTThis  w^it.  1  do  not  so  understand  tHe'lavv.  The  learned  counsel 
l*ns  rcrf&rred  to  McFceTrTv?  People,  25  Wen'd.  64,  as  an  authority. 
The  question  in  that  case  arose  under  a  statute  of  the  state  of  New 
York  regulating  the  proceedings  upon  the  writ  of  habeas  corpus: 
and,  if  the  decision  there  is  as  supposed,  it  would  not  be  an  au- 
thority to  govern  this  case.  The  question  there,  however,  which 
iirrisc  upon  the  proceedings  of  a  father  to  obtain  the  possession  of 
an  infant  child  from  the  custody  and  care  of  the  mother,  who  had 
.separated  from  her  husband  is  not  analogous.  But  the  conclusive 
answer  to  this  objection  is,  that  the  proceedings  upon  this  writ 
in  the  federal  courts  are  nnt  governed  by  the  laws  and  regula- 
lirms  of  the  states  on  the  subject,  but  by  the  common  law  of  Eng-- 
land  as  it  stood  at  the  time  of  (he  adoption  of  the  constitution, 
.subject   to   such   alterations   as    congress   may   see   fit   to   prescribe 


§    3  SCOPE  OF   Tllli   KE.MEDV.  805 

{Ex  parte  Watkins,  3  Pet.  (28  U.  S.)  193;  E.v  parte  Randolpli, 
(Case  No.  11 559)  ;  that,  according  to  that  system  of  laws,  so 
guarded  is  it  in  favor  of  the  liberty  of  the  subject  that  the  decision 
of  one  court  or  magistrate,  upon  the  return  of  the  writ,  refusing 
to  discharge  the  prisoner,  is  no  bar  to  the  issuing  of  a  second 
or  a  third  or  more  writs,  by  any  other  court  or  magistrate  having 
juisdiction  of  the  cause  ;  and  that  such  court  or  magistrate  may 
remand  or  discharge  the  prisoner  in  the  exercise  of  an  independent 
judgment  upon  the  same  matters  (E.v  parte  Partington,  13  Mees. 
tl'  W.  679 ;  Canadian  Prisoners'  Case,  5  Mees.  &  W.  32,  47 ;  The 
King  V.  Suddis,  i  East  306,  314;  Burdett  v.  Abbott,  14  East  91; 
Leonard  Watson's  case,  9  A.  &  E.  73 1\  In  one  of  the  cases  re- 
ferred to  the  prisoner  had  obtained  this  writ  from  two  of  the 
liighest  common  law  courts  of  England,  and  also  from  the  Chief 
Justice  of  the  King's  Bench,  at  chambers,  in  succession,  and  their 
judgments  had  been  given  upon  the  cause  of  his  imprisonment; 
and  the  learned  judge  in  delivering  his  opinion  upon  the  last 
application,  alluding  to  the  decisions  upon  the  former  writs,  re- 
fusing to  discharge,  observed,  that  this  was  no  objection  to  the 
hearing  on  that  occasion,  as  a  subject  in  confinement  had  a  right 
to  call  upon  every  court  or  magistrate  in  the  kingdom,  hav- 
ing jurisdiction  of  the  matter,  to  inquire  into  the  cause  of  his  being 
restrained  of  his  liberty.  The  decision,  therefore^  of  the  circuit 
court,  upon  a  previous  writ  oCTtadcas  corpus  obtained  on  behalf 
Trf-the  prisoner,  refusing  to  discharge  him,  will  not  relieve  me  from 
mqtu'ring  into  the  legality  of  the  imprisonment,  under  the  order 
(1^  the   commissioner,   upon  the'  pre^nt   application. 

The  learned  counsel  also  asked  permission  to  argue  the  ques- 
tions arising  upon  the  construction  of  the  treaty  and  of  the  act 
of  congress  passed  in  pursuance  thereof,  and  upon  the  jurisdiction 
of  the  commissioner  and  the  competency  of  the  evidence  before 
him  upon  which  the  prisoner  was  found  guilty,  inasmuch  as  those 
questions  had  not  been  argued  before  the  supreme  court  on  the 
side  of  the  British  government,  as  no  counsel  appeared  on  that 
argument,  in  its  behalf.  The  request  was  readily  granted ;  and 
it  is  a  matter  of  gratification  to  me,  that  I  have  had  the  benefit 
of  the  investigations  and  views  of  the  learned  counsel,  in  aid  of 
the  further  consideration  wdiich  I  have  been  called  upon  to  give 
to  the  very  important  and  somew'hat  difficult  questions  involved 
in  the  final  determination  of  the  case.  For,  although,  upon  the 
further  consideration  of  these  questions.  I  am  obliged  to  adhere 
to  the  opinions  originally  entertained  and  which  have  been  stated 
at  large  elsewhere,  I  am  the  more  satisfied  with  their  soundness, 
finding  them  unchanged  after  the  able  adverse  argument  submitted 
at  the  hearing.  The  opinions  referred  to  and  which  were  con- 
curred  in  by  tw^o  of  my  learned  brethren,  the  chief  justice,   and 


8o6  EX    PARTE    KAINE.  ,    §    3 

Mr.  Justice  Daniel,  led  to  the  conclusions:  i.  That  the  judiciary 
possess  no  jurisdiction  to  entertain  proceedings,  under  the  treaty 
for  the  apprehension  and  committal  of  an  alleged  fugitive,  without 
a  previous  requisition,  made  under  the  authority  of  Great  Britain, 
upon  the  president  of  the  United  States,  and  his  authority  for  the 
purpose;  2.  That  the  United  States  commissioner,  Mr.  Bridg- 
ham,  was  not  airofficef,''within  the  treaty  and  act  of  congress,  upon 
whom  the  power  Avas  conferred  to  hear  and  determine  the  qncstiofi^ 
of  criminality,  upon  which  determination,  the  surrender  is  to  be 
made;  3.  That  there  was  no  competent  evidence  before  the  com- 
missioner, if  he  possessed  the  power,  to  authorize  or  warrant  the 
finding  of  the  offence  charged.  As  I  have  alread\-  observed  the 
"grounds  upon  which  these  conclusions  were  arrived  at  have  been 
stated  at  large  elsewhere,  and  I  shall  not,  on  the  present  occasion, 
repeat  them.  They  are  such  as  would  have  satisfied  my  mind, 
beyond  all  questions  of  doubt,  had  it  not  been  for  the  different 
opinions  entertained  by  four  of  my  learned  brethren,  for  whose 
judgment  I  entertain  a  sincere  respect.  Those  opinions,  however, 
not  being  the  opinions  of  a  majority  of  the  court,  and  there  having 
been  a  dismissal  of  the  cause  without  anv  decision  upon  the  merits, 
T  am  left  to  follow  out  my  own  convictions  and  conclusions,  in 
the  final  disposition  to  be  made  of  it ;  and,  being  satisfied  of  the 
soundness  of  them,  I  must  enforce  them,  until  I  am  authoritatively 
instructed  otherwise. 

The  practice  of  delivering  up  offenders  charged  with  felony  and 
other  high  crimes,  who  have  fled  from  the  country  in  which  the 
crime  has  been  committed  into  a  foreign  country  and  friendly 
jurisdiction,  is  highly  commendable,  and  sanctioned  by  the  usages 
of  international  law.  At  the  same  time,  it  is  a  delicate  power 
of  government,  which  should  be  limited,  and  guarded  with  great 
care,  to  prevent  abuses,  and  be  exercised  with  the  utmost  delibera- 
tion and  caution.  The  difficulty  of  entering  into  treaties  for  this 
purpose  arises  out  of  the  character  of  the  criminal  codes  of  dif- 
ferent nations,  both  as  it  respects  the  acts  made  penal  by  law, 
and  the  degree  and  mode  of  punishment  made  and  annexed  to 
offenses.  An  enlightened  nation,  with  a  criminal  code,  ainelioraled 
by  the  advance  of  civilization,  would  not  enter  into  a  treaty  with  a 
barbarous  one,  whose  code  was  bloodv  and  cruel.  And,  even 
r.inong  enlightened  nations,  the  stipulations  for  surrender  are  cau- 
tiously limited  to  a  few  sjiccified  crimes  of  atrocious  character, 
against  persons  ancl  ])ropcrty.  The  treaty  of  Nov.  19,  1704  (?> 
Stat.  TiT),  120)  between  this  country  and  Great  Britain,  was  con- 
fined to  the  crimes  of  murder  and  forgery.  The  present  one  of 
7842  is  more  comprehensive,  though  still  restricted,  as  is  also 
the  treaty  with  France,  of  Nov.  g,  1843,  (8  Stat.  580,  582).  Mr. 
JcflFcrsnn  in   T703,  in  a  letter  in  reply  to  a  demand  by  the  French 


§    3  SCOPE  OF    THE   REMEDY.  8of 

]\Iinister,  for  the  surrender  of  fugitives,  observed : — "The  evil  of 
protecting  malefactors  of  every  dye  is  as  sensibly  felt  here  as  in 
other  countries  but  until  a  reformation  of  the  criminal  codes  of 
most  nations,  to  deliver  fugitives  from  them  would  be  to  become 
their  accomplices." 

Another  objection  to  entering  into  these  treaties  is  the  difficulty 
of  guarding  against  the  abuse  arising  out  of  demands  tor  the  sur- 
render of  political  offenders,  under  the  form  of  some  of  the  crimes 
enumerated  in  the  treaty.  In  most  instances,  perhaps,  of  political 
offences,  the  acts,  detached  from  the  political  character  of  the 
transaction,  would  bring  the  case  within  some  of  the  offences 
enumerated ;  and,  unless  the  government  upon  whom  the  demand 
is  made  takes  the  responsibility  of  distinguishing  between  the  two, 
the  treaty  obligation  would  require  the  surrender.  The  "surrender, 
in  such  cases,  involves  a  political  question,  which  must  be  decided 
by  the  political,  and  not  the  judicial,  powers  of  the  government. 
It  is  a  general  principle  as  it  respects  political  questions  concerning 
foreign  governments,  that  the  judiciary  follows  the  determination 
of  the  political  power,  which  has  charge  of  its  foreign  relations, 
and,  is  therefore  presumed  to  best  understand  what  is  fit  and  proper 
for  the  interest  and  honor  of  the  country.  They  are  questions 
unfit  for  the  arbitrament  of  the  judiciary — especially  so  for  the 
subordinate  magistrates  of  the  country.  These  questions  growing 
out  of  political  offences,  greatly  embarrass  governments  in  can- 
vassing the  policy  and  expediency  of  entering  into  treaties  of  ex- 
tradition, and,  when  they  arise,  are  calculated  to  endanger  the 
authority  and  force  of  such  treaties.  It  was  the  apprehension  of 
the  people,  of  this  country,  at  th'e  time,  that  the  offence  of  Jonathan 
Robbins,  who  was  delivered  up  under  the  treaty  with  Great  Britain 
of  1794,  was  a  political  offense,  which  prevented  a  renewal  of 
the  stipulations  from  that  time  down  to  the  present  treaty  of  1842, 
as  it  was  claimed  that  he  was  an  American  citizen,  and  had  been 
impressed  on  board  of  a  British  vessel,  and  that  the  crime  was 
committed  in  rescuing  himself  from  the  hands_of  his  oppressors. 
Assuming  such  apprehension  to  have  been  well  founded,  the  intense 
public   indignation   that   followed   was    creditable   to   the   situation. 

These  considerations,  thus  briefly  stated,  (for  I  have  not  the 
time  to  enlarge  upon  them),  show  that  the  treaties  of  extradition 
involve,  in  the  execution  of  them,  great  national  questions,  which 
should  be  referred,  in  the  first  instance,  to  the  political  power  of 
the  nation,  and  which  under  our  system  of  government,  belong 
to  the  executive  as  the  head  of  the  nation,  to  decide.  The  instances 
of  political  offenses,  in  which  demands  may  be  made  by  one  nation 
upon  another,  for  a  surrender  of  the  offender,  are  by  no  means 
imaginary,  or  cases  of  no  practical  application.  The  historv  of 
the  times  informs  us  that,  at  this  dav,  more  than  one  government 


8o8  EX    PARTE    KAINE.  §    3 

of  the  continent  of  Europe  is  agitated  with  apprehension  and  alarm 
upon  th.is  subject,  and  from  which  even  the  government  of  Eng- 
land seems  not  to  have  been  entirely  free.  And,  in  our  country. 
how  manv  political  offenders,  who  have  sought  an  asylum,  here 
from  the  disastrous  struggles  for  liberty  in  the  other  hemisphere, 
might  be  pomted  out,  some  of  whom  even  might  be  the  subject 
of  a  requisition  under  the  very  treaty  in  question. 

These  are  some  of  the  considerations  that  strongly  urge  the 
interpretation  of  the  treaty  before  us  for  which  I  have  hereto- 
fore contended,  and  the  result  of  which  has  been  already  stated, 
and  which  is  the  one  given  to  it  by  Great  Britain,  in  providing  for 
its  execution  on  ""her  part.  The  demand  by  this  government  for 
the  surrender  of  the  fugitive,  must  be  first  made  directly  upon 
that  government,  and  its  consent  and  authority  be  obtained,  before 
the  judiciary  can  be  called  into  requisition.  In  my  judgment, 
this  is  a  sound  construction  of  the  language  of  the  treaty ;  and 
carries  out  the  intention  and  policy  of  the  high  contracting  par- 
ties. The  case  immediately  before  me  may  be  one  of  compara- 
tive unimportance,  as  the  fugitive  demanded  is  an  obscure  and 
humble  individual,  and  may  even  be  the  subject  of  proper  sur- 
render under  the  treaty.  But  I  cannot  forget  that  the  principles 
and  rules  of  construction  to  be  applied  to  him  will  be  equally  ap- 
l)licable  to  the  case  of  a  demand  for  the  surrender  of  a  political 
offender  and  to  all  other  cases  falling  within  its  provisions.  I  am, 
therefore,  not  at  liberty  to  distinguish  it,  whatever  may  be  the 
supposed  merit  of  the  application.  I  think  the  requisition  should 
have  been  made,  in  the  first  instance,  upon  the  executive,  and  his 
authority  obtained,  in  order  to  warrant  the  interposition  of  the 
judician,^;  and  further,  that  the  commissioner  before  whom  the 
application  was  made,  possessed  no  jiu'isdiction  of  tTTo"  rase,  n'oT 
•being  aii  officer  within  the  treaty  or  act  of  cons^rcss  passed  in  pur- 
suanrc' thereof ;  and  that  the  evidence  in  the  case,  upon  which  the 
nffcnce  was  ^ormcTT^as  incompetent  "aiicf  hence  did  not  warrant 
l+ic  finding  of  the  magistrate.  The  proof  in  all  cases  under  a  treaty 
of  extradition,  should  be,  not  only  competent,  but  full  and  satis- 
factory, that  the  offence  has  been  committed  by  the  fugitive  in 
the  foreign  jurisdiction — sufficiently  so  to  warrant  a  conviction, 
In  the  judgment  of  the  magistrate,  of  the  offence  with  which  he 
is  charged,  if  sitting  upon  the  final  trial  and  hearing  of  the  case. 
No  magistrate  should  order  a  surrender  short  of  such  proof. 

The  result  is,  that  the  prisoner  is  entitled  to  be  discharged  from 
imprisonment  under  the  warrant""bV"  order  "ol""fTi'c"  commis.=!i"OTrcr, 
and,  conscquciTfTv"rr'om  arrest  or  confinement  under  the  warrant 
isstiH  b}'  the  acjgBK  secretary  of  state  in  pursuance  thereof.  Bu,,, 
as  the  discharge  is  in  consequence  of  illegality  in  the  proceed- 
ings   npdrr   tlie   troatv,   and    as   the   f|iicstion    of   surrender   is    one 


'§    3  SCOPE  OF   THE  REMEDY.  809 

of  which  I  can  entertain  jurisdiction.  I  am  ready  to  hear  any 
further  evidence  on  behalf  of  the  application,  which  the  repre- 
sentative of  the  British  q-overnment  may  see  fit  to  present. 

Tine  counsel  for  the  British  government  not  being  prepared 
to  furnish  proof  that  any  authority  had  been  given  by  the  presi- 
TTent  of  the  United  States  for  the  arrest  of  the  prisoner,  he  was 
discharged,  '"       -«—"-— 

_Altli9ijgl-\^he  usual  method  of  instituting  mternational  extradition  pro- 
ceedjngs-- i^—ie-tttake.  hrsT  a  fofiriaT "requisition  upon  the  president,  upon 
wTiose  mandate  the  arrest  is  made,  it  has  been  held  that  such  procedure 
1^  not  absolutely  necessary,  but  that  proceedings  may  be  instituted  directly 
"bMore  our  courts  by  the  demanding  state.  But  the_,pr£sjdent  may  refuse 
fo  deliver  up  the  accused  even  after  the  warrant  has  been  issued  by  the 
'~iffourt.  Nor  is  the  president's  warrant  of  extradition  final,  since  the  courts 
may  on  habeas  corpus  discharge  the  accused  in  that  the  crime  charged 
does  not  legally  come  within  the  terms  of  the  treaty  or  for  other  defects. 


In  re  ADUTT. 

1893,     U,  S,  Circuit  Court,  N,  D.  Illinois.     55  Fed,  376. 

Jenkins,  Circuit  Judge. — The  petitioner,  upon  complaint  of  the 
consul,  at  Chicago,  of  the  Austna-Hungar\  Qncrnnicnt,  was,  By 
t!Te~t"^n i t e d" "Sla t e s  commissioner,  committed  to  the  ctistodx  of  the 
marshal  to  await  the  action  of  the"  exe'cu'tive  upon  demand  of  the 
!Tir?trirr=Htmgafy  govefnmetit  for  his  extradition,  upon  the  charge 
of  forgery.  I  le  thereupon  sued  out  his  writ  of  habeas  corpits-  to 
oJ)tain  his  discharge,  and  a  writ  of  certiorari  to  the  commissioner 
'to  bring  up  the  proceedings  before  him, 

"Many  objections  were  raised  by  the  petitioner,  at  the  hearing, 
to  the  jurisdiction  of  the  commissioner,  and  to  the  regularity  of 
the  proceedings  before  him,  but  I  deem  it  necessary  to  consider 
onlv  the  following: — First  that  there  is  no  evidence  in  tjie  record 
of  any  demand  or  requTsTtTofi'mafTeb}'  the  government  of_Austria- 
FTuiT^arv  upon  the  government  of  the  United  States  of  America 
Tor  the  extradition  of  the  "prisoner ;  second,  that  the  treaty  w'ith_ 
-ttet  "^vernment  covers  only  the  crime  oUforgery,  and  not  the  of- 
fense of  uttering  forged  paper:' third,  that  the  crime  of  forgery 
as  knowTi  to  the  law  of  Austria-Hungary,  comprehends  only  the 
falsification  of  public  obligations,  and  not  the  forging  of  commer- 
cial paper:  fourth,  that  the  offense  with  which  he  is  charged  at 
\'ienna  is  "fraiul  by  means  of  forQ;'eryr'  fifth,  that  the  complaint 
to~fIie  commissioner  does  not  state  that  Mr.  Claussenius,  the  Aus- 
tria-Hungary consul,  in  preferring  the  complaint,  acted  in  the  ca- 
pacity   of   the    representative    of   his    government:    sixth,    that    the 


8lO  IX    RE   ADUTT.  §    3 

complaint  is  defective  and  void  as  to  jurisdiction,  in  that  it  does 
not  set  forth  the  particulars  of  the  commercial  paper  alleged  to 
be  forged. 

The  office  of  the  writ  of  habeas  corpus  is  not  to  correct  irreg- 
ufaritiesT  is  not  to  reverse  the  decision  of  the  commissioner  be- 
cause of  some  incompetent  evidence,  being  admitted;  is  not  to 
review  his  decision  upon  the  weight  and  sufficiency  of  the  testi- 
mony. The  court  can  only  inquire  as  to  the  jurisdiction  of  the 
commissioner"  over  the  subject  matter,  and  where  there  was  le;^l 
evidence  before  him,  supporting  the  judgment. 

The  first  objection  presents  a  question  which  has  vexed  the 
courts  and  executive  department  of  the  government  for  many 
years.  I  need  not  here  enter  into  a  recital  of  the  conflicting 
decisions  upon  this  point,  except  to  say  that  it  would  seem  to  have 
been  decided  against  the  petitioner  in  In  re  Kaine,  14  How.  103, 
and  in  Benson  v.  McMahon,  127  U.  S.  457,  8  Sup.  Ct.  Rep.  1240. 
It  would,  I  think,  in  the  protection  of  individual  liberty,  be  more 
seemly  to  require  that  the  initiative  of  proceedings  for  extradition 
should  rest  with  the  government  of  the  United  States,  upon  de- 
mand of  a  foreign  government,  than  that  they  should  be  allowed  to 
be  instituted  by  a  counsel  of  a  foreign  government,  without  au- 
thorization by  our  government,  and  would  also,  I  think,  better 
comport  with  the  dignity  of  the  government,  and  of  judicial  pro- 
ceedings; but  I  feel  concluded  by  the  decisions  to  which  I  have 
referred,  and  am  unable,  therefore,  to  sustain  this  objection. 

The  second  objection — that  the  crime  of  uttering  forged  paper 
is  not  comprehended  in  the  term  " forge ryT'^— is,  I  think,  not  maia- 
tainable.  The  common  law  definition  of  forgery  does  include  the 
utterance  of  forged  paper. 

The  third  objection — that  the  crime  of  forgery  as  known  to 
the  law  of  Austria-Hungary  comprehends  only  the  falsification 
of  public  obligations,  and  not  the  forging  of  commercial  paper — 
is,  I  think,  not  maintainable.  The  term  "forgery"  as  used  in  the 
treaty,  should  have,  so  far  as  this  government  is  concerned,  its 
common  law  definition,  as  it  was  undoubtedly  used  in  that  sense. 
The  law  of  the  Austria-Hungary  government,  as  expounded  by 
iVfn'Trresier,  does' not  nidlcate  that  forgery  inclu^es'pnty  the  falsi- 
fication of  piil)lic  documents.  There  is  designated  inritsTaw  the 
crime  of -falMficntion'  of  public  documents,  and  there  would  also 
scorn  to  be  the  crime  of  falsification  of  private  documents,  treated 
in  the  criminal  code  of  that  country  as  one  of  the  species  of  crime 
classified  under  the  general  head  of  "betrug"  or  "fraud."  It  is 
utifk-r  that  head  defined  to  be  a  crime  to  manufacture  false  private 
documents,  or  falsify  genuine  ones.  We  must  look  to  the  essence 
of  the  offence,  and  not  to  its  mere  denomination  in  foreign  codes,  to 
ascertain   just  the  offense  comprehended    in  the  treaty.     And   the 


^    3  SCOPE  OF  THE  REMEDY.  8ll 

spirit  oi  that  treaty  is,  as  I  conceive,  that  one  should  be  extradited 
for  the  commission  of  the  offense,  known  as  forgery,  by  what- 
ever name  it  may  be  called,  in  the  criminal  code  of  Austria-Hun- 
gary ;  and  if  the  charge  before  the  commissioner  is  that  of  forgery, 
as  known  to  our  law,  and  the  evidence  is  sufficient  to  hold  the 
prisoner  for  the  action  of  the  executive,  it  is  I  think,  quite  imma- 
terial, that  the  offense  of  forgery,  as  known  to  our  law,  is  classified 
in  Austria  under  the  title  of  "Fraud  by  Means  of  Forgery." 

i  am  unable  to  sustain  the  fourth  objection.  The  complaint 
states  that  the  complainant  is  the  duly  accredited  official  agent 
and  representative  of  the  Austria-Hungary  government,  at  Chicago. 
The  criticism  upon  the  jurat  to  the  complaint,  that  he  does  not 
positively  swear  that  he  is  the  consul,  but  that  his  title  is  merely 
descriptio  personae,  is  ill  sustained  in  view  of  the  positive  state- 
ment in  the  body  of  the  complaint ;  and  the  description  of  his 
person  in  the  jurat  is  unnecessary,  and  superfluous.  It  is  doubtful 
also,  if  it  be  essential  that  the  complaint,  should  show  that  it  was 
preferred  by  the  representative  of  a  foreign  government.  It  is 
enough,  probably,  if  to  the  commissioner,  or  to  the  executive  act- 
ing upon  the  proceedings  before  the  commissioner,  it  duly  appears 
that  the  proceeding  is  in  fact  instituted  and  conducted  by  the  de- 
manding nation,  or  its  duly  accredited  representative.  It  would, 
1  think,  be  the  better  practice  that  the  initiative  of  the  proceed- 
ing should  show  that  it  was  instituted  by  the  demanding  govern- 
ment :  but  it  seems  to  have  been  considered  unnecessary,  so  long 
as  it  does  appear  in  the  proceedings,  as  a  matter  of  fact,  that  they 
are  sanctioned  by  the  demanding  government.  Benson  v.  Mc- 
Mahon,  supra. 

The  fifth  objection — that  the  complaint  is  defective  as  to  juris- 
diction— cannot,  I  think,  be  sustained.  It  is,  of  course,  necessary 
that  the  substance  of  the  ofifense  charged,  should  be  declared  so 
that  the  court  can  see  that  the  particular  crime  charged  is  one 
enumerated  in  the  treaty ;  but  a  complaint  need  not  have  the 
precision  and  particularity  of  an  indictment,  but  should  set  forth 
the  substantial  and  miaterial  features  of  the  offense.  In  re  Henrich, 
5  Blatchf.  414;  In  re  McDonnell,  11  Blatchf.  79.  In  the  latter 
case  the  complaint  charged  that  the  prisoner  did  "commit  the 
crime  of  forgery  and  the  utterance  of  forged  paper,  towit,  did 
feloniously,  in  the  said  city,  and  at  the  time  aforesaid,  forge  and 
utter,  well  knowing  the  same  to  be  forged,  several  acceptances 
of  two  several  bills  of  exchange,  each  for  the  payment  of  one 
thousand  pounds  sterling,  lawful  money  of  the  Kingdom  of  Great 
Britain  and  Ireland."  The  court  held  that  this  complaint  did 
charge  the  crime  of  forgery  at  common  law,  although  without  the 
particularity  required  in  the  formal  indictment  for  the  offence. 
Tlie    complaint    here,    while    I    think    it    greatly    wanting    in    par- 


8 12  IN    RE   ADUTT.  §    3 

ticiilarity  of  description,  does  charge  the  crime  of  foreign  certain 
bills  of  exchange,  of  the  value  of  81,000  gulden,  Austrian  coin. 
I  aifl^jjiclined  to  hold  this  complaint  sufficient  to  give  the  com- 
missioner jurisdiction,  because  it  charges  the"Trime  of  forggrvT 
'"Trf  all  sucTtT  cases  as  these,  however,  the  commissioner,  upon  objec- 
tion of  the  petitioner,  should  recjuire  an  amendment  of  the  com- 
plaint, that  the  petitioner  may  be  fully  informed  of  the  particular 
charge  for  which  he  is  sought  to  be  extradited,  and  all  the 
particulars  of  that  charge.  He  ought  not  to  be  required  to  defend 
himself  against  the  charge  of  forging  certain  bills  of  exchange 
without  being  advised  by  the  complaint  of  all  the  particulars  of 
the  bills  which  he  is  charged  with  forging.  That  is,  however, 
a  matter  for  the  commissioner,  acting  within  his  jurisdiction,  and 
not  a  matter  going  to  the  jurisdiction  of  the  commissioner  to 
entertain  the  complaint. 

There  was  a  further  objection  made,  that  the  warrant  under 
which  the  prisoner  was  arraigned  charges  two  offenses — the  forg- 
ing and  the  uttering  of  the  forged  paper.  It  need  only  be  said,  as 
to  that,  that  both  are  comprehended  within  the  crime  of  forgery, 
at  common  law. 

I  desire  to  add,  in  conclusion,  that  I  have  been  greatly  impressed 
with  the  dissenting  opinion  of  Mr.  Justice  Nelson,  concurrea  in 
by  Chief  Justice  Taney  and  Justice  Daniel,  In  re  Kaine,  14  How. 
103,  and  should  be  glad  to  see  the  principles  there  asserted  adopted 
in  all  extradition  prooceedings.  The  danger  to  individual  liberty 
by  the  institution  of  these  proceedings,  except  under  the  sanction 
of  the  e'xecutive  of  the  United  States,  is  too  grave  to  be  tolerated. 
Proceedings  in  interstate  rendition  can  only  be  set  in  motion  by 
the  executive  of  one  state  on  demand  of  the  executive  of  another. 
So  should  it  be  with  respect  to  extradition.  T  should  be  glad  to  see 
the  jurisdiction  of  the  commissioner  called  into  action  only  upon 
the  request  of  the  executive.  It  is  true  that  extradition  can  be  had 
finally  only  upon  the  action  of  the  executive,  but  there  cannot  be 
too  many  restrictions  to  the  encroachment  upon  individual  liberty. 
I  should  also  be  glad  to  see  a  requirement  by  law  that  the  com- 
plaints in  such  cases  as  this  should  be  required  to  hr.ve  the  par- 
ticularity with  respect  to  charging  the  offence  that  is  required  in 
formal  indictments.  This  is  important  in  view  of  the  holding  that 
one  can  be  tried  in  the  demanding  country  only  for  the  offence 
U)v  which  he  was  demanded  and  extradited.  I  feel  bound,  how- 
ever, by  the  decisions,  and  practice  under  them,  to  hold  this  pro- 
ceeding sufliciont. 

It  was  urged  at  the  hearing  that  there  was  not  sufficient  legal 
evidence  before  the  cr)mniissioner,  to  sustain  his  holding.  I  have 
carefully  inspected  tlir  record  and  without  particularizing  the  facts. 
I  deem  it  onl\  ncressarx-  U)  observe  thai   \  think  there  was  abundant 


§    3  SCOPE  OF  THE  REMEDY.  813 

legal    evidence    before    the    commissioner,    upon    which    he    might 
Avell  find  that  the  offence  had  been  committed  by  the  petitioner. 

The  J2risoner  will  he  remanded  to  the  custody  of  the  marshal,  to 
bg^held  under  tin-  carrnTTItTiieiit  of  the  commissioner,  awaiting  the 
order  of  the  President  of  the  L'nited  States  in  the  premises,  and 
the  writs  of  habeas  corpus  and  certiorari  are  discharged. 


Ex    PARTE    KER. 

1883.     U.  S.  District  Court,  N.  D.  Illinois.     i8  Fed.  167. 

Drunfmonp,  J. — Tlijj^  i>  an^-application  on  the  part  of  Frederick 
l\r.  Ker,  for  a  \vrit  of  liaJ>eas  corpus  to  issue,  to  inquire  into  the 
carLse-jof  his  irapjris.onnient.  and,  if  it  be  found  unlawful,  that  he 
shall  be  discharged  therefrom.  Jhe  rule  upon  tlie  -subject  is  that 
if  on  the  application  of  this  kind  the  court  is  of  the.  opinion  that 
■tTi'e  \\rit,  if  issued,  would  not  authorize  the  discharge  of  the  peti- 
tioner, it  is  not  necessary,  to  issue  it.  The  law  does  not  require 
a  vain  act  to  be  done. 

-T  laa^e_£omeJ.Q_th£_.CQiLcJusion  in  this  case  that  I  \vill  jipt  i^sug:^ 
Jhe^wxiiT  I  will  state  briefly  the  reasons  ^TiyT  have"  reached  this 
conclusion. 

The  petitioner  was  charged  with  the  offense  of  larceny  and 
forger}-.  comniTtted  within  the  jurisdiction  of  the  court  where  the 
two  indicTifients  liave  been  found.  In  considering  the  question, 
we  may  assume,  for  the  purpose  of  this  motion,  that  these  offenses 
were  actually  committed.  Afterthev__\vere  thus  committed  the 
petitioner  left  the  country _and^  fled  to  Peru^  Jn  South  AmeHcaj 
"While  there  he  was  under  the  protection  of  the  law^s~of~Peru,  and 
could  not  be  legally  removed  therefrom  except  in  accordance  with 
the  laws  of  that   country. 

The  United  States  had  made  a  treaty  in  1870,  under  which 
Peru  agreed,  in  the  manner  therein  stated,  to  return  to  the  United 
States  certain  offenders  wdio  had  fled  to  that  country,  and  claimed 
the  protection  of  its  laws.  It  has  been  said  in  argument  that  a 
person  cannot  be  returned  who  had  escaped  from  justice  from  the 
United  States,  and  had  taken  refuge  therein  any  other  way  than 
under  the  terms  of  the  treaty.  That  perhaps  is  true,  provided 
there  was  no  other  way  under  the  laws  of  Peru.  I  do  not  know 
that  the  fact  that  a  treaty  was  made  between  the  United  States  and 
Peru,  by  which  the  latter  state  agreed  to  return  fugitives  from 
justice  to  the  United  States,  prevented  that  country  from  declar- 
ing, under  its  own  laws,  that  persons  might  be  returned  inde- 
pendent of  the  treaty.     All  that   I  wish  to  insist  on  is  that  the 


8l4  EX    PARTE    KER.  ■  §    3 

petitioner,  being  in  Peru,  could  only  be  legally  removed  by  virtue 
of  the  law  of  that  country,  and,  of  course,  a  treaty  made  between 
the  United  States  and  Peru  is  a  law  of  that  state.  Certain  steps 
were  taken  on  the  part  of  the  government  of  the  United  States, 
at  the  request  of  the  executive  of  this  state,  to  procure  the  ex- 
tradition of  the  prisoner  from  Peru  to  Illinois,  where  the  offenses 
were  committed.  Accordingly  a  requisition  was  made  by  the  pres- 
ident of  the  United  States  upon  the  authorities  of  Peru,  for  ths 
return  of  Ker. 

Owing  to  some  cause,  which  is  not  stated  in  the  .petition,  the 
steps  pointed  out  in  the  treaty  were  not  taken.  A  demand  seems 
not  to  have  been  made  upon  the  authorities  of  Peru ;  but  the  peti- 
tioner was  seized,  it  may  be  conceded  without  any  authority  on 
the  part  of  the  United  States  and  without  any  consent  on  the  part 
of  Peru,  by  private  persons ;  he  was  placed  on  board  of  the  United 
States  ship  Essex,  in  a  port  of  Peru ;  transferred  to  the  Sand- 
wich Islands,  and  thence  in  a  private  vessel  to  San  Francisco, 
within  the  territory  of  the  United  States.  For  the  purpose  of 
placing  him  under  the  authority  of  the  law  of  the  United  States 
if  he  cam^  within  the  state  of  California,  a  requisition  from  the 
governor  of  Illinois  upon  the  governor  of  California  was  made, 
and  a  warrant  issued  by  the  governor  of  that  state.  It  is  said, 
and  it  is  uncontroverted,  that  at  the  time  this  process  was  issued 
by  the  governor  of  California,  the  petitioner  was  not  within  the 
territory  and  so  was  not  subject  to  the  process  or  authority  of  the 
governor  of  that  state.  However  this  may  be,  in  the  same  man- 
ner it  may  be  admitted  that  he  was  taken  in  Peru,  and  under  the 
same  authority,  no  more  and  no  less,  he  was  taken  to  San  Fran- 
cisco, to  Illinois,  and  to  the  county  of  Cook,  where  the  offenses 
were  committed.  When  brought  here,  there  had  been  a  process 
issued  from  a  competent  court,  on  indictments  found  in  that  court 
against  him  for  the  offenses  which  it  was  alleged  he  had  com- 
mitted, and  under  that  process  he  has  been  taken  into  custody; 
and  now,  it  is  claimed,  he  should  be  released  because  of  the 
circumstances  connected  with  his  arrest  and  capture  in  Peru,  and 
his  transfer  from  that  country  to  the  United  States.  It  is  claimed 
that  this  vitiated — what  otherwise  would  be  legal — the  arrest  under 
the  process  by  which  he  is  now  held  in  custody. 

The  question  is  whether  this  is  so  in  point  of  law.  It  is  said 
that  while  in  Pern  he  was  under  the  protection  of  the  treaty 
which  had  been  made  between  the  United  States  and  Peru,  and 
that  his  seizure  and  transfer  were  a  violation  of  the  treaty  stipula- 
tions between  the  United  States  and  Peru.  This  is  only  true  in 
a  qualified  sense.  While  in  Peru  he  was  not,  strictly  speaking, 
under  the  protection  of  the  laws  of  the  United  States,  but  of  the 
laws  nf  Peru;  :ind   if  he  was  taken  contrary  to  the  provisions  of 


§    3  SCOPE  OF   THE   REMEDY.  815 

the  treaty  between  the  two  countries,  he  may  have  been  taken 
in  violation  of  the  laws  of  Peru,  But  in  one  sense  it  may  be  said 
that  he  does  not  come  within  the  protection  of  the  treaty  between 
the  United  States  and  Peru.  That  treaty  does  not  guarantee  pro- 
tection to  all  citizens  of  the  United  States  who  may  be  within 
the  territory  of  Peru.  It  is  the  laws  of  Peru  that  protect  the  citizens 
of  the  United  States  who  may  for  the  time  be  domiciled  in  or 
inhabiting  Peru ;  so  that  it  can  hardly  be  said  in  the  ordinary 
sense  of  the  language  used,  that  he  was  under  the  protection  of 
the  treaty  between  the  United  States  and  Peru.  True,  he  could 
not,  it  may  be,  be  transferred  legally  from  one  state  to  the  other 
except  in  the  mode  pointed  out  in  the  treaty,  unless  there  was  some 
law  of  Peru  Avhich  authorized  it  to  be  done.  If  the  act  so  done 
was  against  the  laws  of  Peru,  for  that  violation  the  party  has  his 
remedy  under  the  laws  of  Peru,  (enforceable  here  or  elsewhere), 
and  not,  properly  speaking,  under  the  laws  of  the  United  States. 
The  United  States  by  this  treaty  does  not  guaranty  that  it  will 
protect  every  citizen  or  inhabitant  of  Peru  who  may  come  to  the 
United  States.  If  a  Peruvian  here  has  a  trespass  committed  against 
him,  he  has  his  remedy  under  our  laws.  So  it  is  in  Peru ;  when 
the  citizen  of  the  United  States  is  there  he  is  under  the  protec- 
tion of  its  laws.  While  this,  I  think,  is  true,  still  I  am  willing  to 
admit  that  there  is  force  in  the  .view  taken  by  the  counsel  of  thp 
petitioner  in  this  case.  ( )ur  judgment  and  our  feelings  naturally 
rebel  against  an  act  done  in  the  manner  in  which  this  was  done, 
as  stated  in  the  petition,  namely,  by  a  person  without  authority 
of  law — without  any  process — seizing  one  claimed  to  have  fled 
from  justice  and  taken  refuge  in  Peru,  and  bringing  him  to  the 
United  States,  thus  committing  what  is  claimed  to  be  an  outrage 
against  personal  liberty  and  personal  rights ;  and  we  naturally 
desire,  in  all  proper  cases,  to  give  protection  to  the  party  who 
has  thus  been  outraged,  and,  when  he  asks  for  it,  to  give  him 
adequate  compensation  for  the  wrong  that  has  been  done.  The 
question  is,  is  that  the  case?  The  real  question  is  whether,  be- 
cause of  this  private  wrong  done  in  taking  possession  of  the  per- 
son of  the  petitioner  to  be  brought  to  the  state  of  Illinois,  that 
vitiates  the  process  that  has  been  issued  from  a  competent  court 
for  the  offence  or  oflfences  that  have  been  committed  or  charged 
against  him,  so  as  to  prevent  his  arrest?  In  view  of  the  author- 
ities which  have  been  cited  on  the  argument,  I  cannot  say  that 
the  case  is  so  clear  as  to  authorize  the  court  to  issue  the  writ;  or, 
if  it  were  issued  and  served,  to  discharge  him  from  custody  on 
this  account.  The  consequences  of  the  discharge  are  so  very 
serious  that  the  court  may  well  pause  before  reaching  this  con- 
clusion, because  the  result  would  be  that  the  petitioner  might  escape 
from  all  trial  for  these  offenses.     Once  left  at  liberty,  of  course 


8l6  EX    PARTE    KER.  §    3 

he  necessarily  would  evade  trial,  unless  he  remain  here  until  the 
protection  claimed  is  withdrawn  from  him,  and  if  he  escapes 
from  it,  as  he  had  already  attempted,  because  he  was  once  cap- 
tured, it  does  not  follow  that  he  will  a  second  time. 

It  seems  to  me  that  it  is  not  competent  for  the  court  to  look 
into  the  circumstances  under  w^hich  the  capture  was  made,  and 
the  transfer  of  the  petitioner  from  Peru  to  the  United  States, 
in  order  to  free  him  from  the  consequences  of  the  lawful  processes 
Avhich  have  been  served  upon  him  for  the  offense  or  offences  which 
he  is  charged  to  have  actually  committed  within  the  county  of 
Cook  and  state  of  Illinois. 

The  only  cases  which  have  been  cited  v.'hich  seem  to  have  some 
bearing  upon  the  question  involved  here,  are  those  which  have 
arisen  where  a  party  has  been  transferred  from  a  foreign  country 
to  the  United  States,  and  treaties  have  existed  under  which  the 
extradition  was  made  from  a  foreign  country  to  the  United  States 
for  the  commission  of  a  particular  offense.  Some  have  held,  and 
such  seems  to  be  the  opinion  of  Air.  Spear,  who  has  written  a 
work  on  the  law  of  extraditions,  that  where  a  party  has  been 
arrested  under  the  authority  of  a  treaty  in  a  foreign  country  and 
transferred  to  this  country  for  the  commission  of  an  offense  here, 
he  cannot  be  tried  for  a  different  offense.  Perhaps  it  may  be  said 
that  the  weight  of  authority  is  in  "accordance  with  that  view.  But 
that  case  is  not  this.  Here,  though  certain  measures  were  taken 
by  w^hich  to  transfer  the  petitioner  from  Peru  to  this  country,  yet 
they  were  never  carried  into  effect — the  final  steps,  in  other  words, 
were  not  taken  ;  although  the  writ  of  authority  was  issued,  it  was 
not  executed  as  required  by  its  terms,  and  it  may  be  said  that  the 
parties  took  the  law  into  their  own  hands,  throwing  aside  the  writ 
of  process  Avhich  had  been  issued,  and  which  was  in  the  hands 
of  one  of  them,  who  thus  committed  violence  upon  the  petitioner's 
rights.  Here,  therefore,  the  petitioner  had  not  Ix^en  taken  under 
the  authority  of  law_,  and  in  pursuance  of  the  terms  of  a  treaty 
between  the  United  States  and  a  foreign  country,  from  that  coun- 
try to  this.  He  has  been  taken,  I  repeat,  simply  by  what  we  may 
call  physical  force,  by  those  havmg  him  in  custody.  The  govern- 
ment has  not  interfered  at  all.  It  has  been  done  under  the  law  of 
.the  stronger,  and  not  under  statute  or  common  law. 

So  that  this  case  is  not  within  those  decisions,  while  it  may  be 
said  to  be  within  the  authority  of  other  decisions  which  were  cited 
on  the  argument.  As  T  have  said,  if  I  were  clear  in  the  view 
that  this  petitioner  should  be  released,  T  would  issue  the  writ  and 
discharge  him;  it  is  because  T  am  not  clear  that  I  decline  to  issue 
the  writ,  the  consequence  of  which  would  be  his  discharge;  in 
other  words,  T  am  not  satisfied  that  he  ought  to  be  dismissed  from 
custridv. 


§    3  SCOPE   OF   THE    RExMEUY.  Si/ 

I  am  more  inclined  to  this  view  because  by  this  decision  he  does 
not  lose  the  protection  of  the  treaty  if  he  is  entitled  to  it,  for  he 
can  set  it  up  in  the  indictments  which  have  been  found  against 
him,  and  the  process  which  has  been  issued  from  the  state  court; 
and  he  can  take  the  opinion  of  the  supreme  court  of  the  United 
States  upon  the  question,  if  he  is  entitled  to  the  immunity  he 
claims  under  the  treaty,  after  the  case  has  passed  through  the 
various  courts  of  the  state ;  or  he  can,  I  suppose,  go  to  the  supreme 
court  of  the  United  States,  and  apply  for  a  writ  of  habeas  corpus, 
and  if  he  is  entitled  to  it  that  court  can  give  him  the  protection 
of  the  treaty.  So  that  in  deciding  the  case  in  this  way,  I  do  not 
deprive  him  ultimately  of  any  remedy  which  he  has  under  the 
treaty  between  Peru  and  the  United  States ;  and  I  may  add  that, 
in  view  of  the  conflict,  between  some  of  the  state  courts  and 
some  of  the  inferior  courts  of  the  United  States  upon  this  sub- 
ject, it  is  very  desirable  that  this  question,  confessedly  of  the 
greatest  importance,  and  now  occasionally  arising,  should  be  de- 
cided by  the  supreme  court  of  the  United  States.  _So  jhat  not 
being  satisfied  that  the  petitioner  is  now  entitled  to  be  cIi's'cTia'rge'd 
from  the  writs  which  have  been  issued  against  him,  I  shall  not  di- 
rect the  writ  of  habeas  corpus  to  issue,  for,  if  issued  and  served  upon 
him,  I  should  not,  as  at  present  advised,  release  him  from  custody. 

See  in  general  on  the  jurisdiction  of  the  courts  in  habeas  corpus  pro- 
c-eedings  where  international  extradition  is  sought.  Brown,  Ex  parte,  28 
Fed.  653;  Adriance  v.  Lagrave,  59  N.  Y.  no;  Stupp,  In  re,  12  Blatch. 
(U.  S.)  501;  Fowler,  In  re,  4  Fed.  303;  Van  Aernam,  Ex  parte,  3  Blatch. 
(U.  S.)  160;  Luis  Oetiza,  In  re,  136  U.  S.  330;  Benson  v.  McMahon,  127 
U.  S.  457;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698;  Ornelas  v. 
Ruiz,  161  U.  S.  502;  Farez,  In  re,  7  Blatch.  (U.  S.)  345;  Ezeta,  In  re,  62 
Fed.  972;  Thomas,  In  re,  12  Blatch.  (U.  S.)  370;  McDonnell,  In  re,  11 
Blatch.  (U.  S.)  170;  Grin  v.  Shine,  187  U.  S.  181;  Stewart  v.  United 
States,    119   Fed.   89. 


h. — Interstate  "Rendition." 

Ex  PARTE  ALABAMA,  in  re  MOHR. 

1883.    Supreme  Court  of  Alabama.    73  Ala.  503. 

SoMERViLLE,  J. — The  purpose  of  the  present  application  is  to 
vacate  the  action  of  "The  probaTe  judgg^'lltschafging  one  Alexander 
Moh'f,  Irom  alleged  illegal  custody,  on  his  petition  for  the  writ 
of  habeas  carp  us.  The  return  of  the  writ  showed  that  the  peti: 
tioner  was  held  in  the  rustody  of  the  relator,  Frederick  Centner, 
as  agent  of  the  state  of  Pennsylvania,  under  a  warrant  of  arrest 
i«?i?cdnT\~'tbe  gm-erh^^^  pursuant  to  a  requisition  from 


8l8  EX    PARTE    ALABAMA,    IN    RE    MOHR.  §    3 

the  governor  of  the  former  state,  demanding^  his  extradition  as 
'a  fugitive  from  justice.  The  crime  charged  is  that  of  obtaining 
goods  by  false  pretences.  The  probate  judge  permitted  evidence 
to  be  introduced,  showing  that  the  prisoner  was  nr)t  in  the  state 
of  Pennsylvania  at  the  time  of  the  commission  of  the  alleged  of- 
fense, and  had  never  been  there  since ;  that  the  goods  were  ob- 
TStned  bv  purchase  from  an  agent  of  the  prosecutor  in  the  state 
of  New  York,  to  whom  the  false  representations,  if  any,  were 
made,  and  that  the  petitioner  had  never  fled  from  the  state  of 
Pennsh'vahia,  and  wias  not  a'  Higitive  from  justiceT  rf1s"cTaimecr 
""that  the  state  courts  have  ho  jurisdiction  of  the  case,  and  if  so,  that 
the  probate  judge  had  no  jurisdiction  to  go  behind  the  warrant 
of  the  executive,  to  investigate  the  question  as  to  whether  or  not 
the  prisoner  was  in  fact  a  fugitive  from  justice ;  and  that  the 
proceedings  before  him  were  coram  non  judice  and  void. 

The  questions  thus  raised  for  our  consideration  involve  the  con- 
struction of  a  clause  in  the  Federal  Constitution  relating  to  the 
extradition  of  fugitive  criminals  between  the  several  states,  and 
of  the  law  of  Congress  enacted  for  the  purpose  of  its  enforcement. 

Xhe  Constitution  of  the  United  States,  provides  that  "a  person 
charg^2j[S  ?H3'^~*^*^  with  treason;  felony,  or  other  crime,  who  siialU 
Hee   from   justice,   and   be   found  in   another   state,    shall,   nn   the 
demand  of  the  executive  authority  of  the  state  from  which  lie  flfd._ 
be  delivered  up,  to  be  removed  to  the  state  having  jurisdiction  of 
the  crime." — Art  IV,  sec.  2. 

The  act  of  Congress  designed  to  carry  this  constitutional  pro- 
vision into  effect,  was  passed  in  the  year  1793,  and  is  found  sub- 
stantially embraced  in  section  5278  of  the  revised  statutes  of  the 
United  States  (U.  S.  Comp.  Stats.  1901,  p.  3597).  It  provides 
that  "whenever  the  executive  authority  of  any  state  or  territory 
demands  any  person,  as  a  fugitive  from  justice,  of  the  executive 
authority  of  any  state  or  territory  to  which  such  person  has  fled, 
and  produces  a  copy  of  an  indictment  found,  or  an  affidavit  made 
before  a  magistrate  of  any  state  or  territory,  charging  the  person 
demanded  with  having  committed  treason,  felony  or  other  crime, 
certified  as  authentic  by  the  governor,  or  chief  magistrate  of  the 
state  or  territory,  from  whence  the  person  so  charged  has  fled. 
It  shall  be  the  duty  of  the  executive  authority  of  the  state  or  ter- 
ritory to  Avhich  such  person  has  fled,  to  cause  him  to  be  arrested 
and  secured,"  and  to  be  delivered  up  to  the  "agent"  of  the  demand- 
ing state  or  territory.  Rev.  Stats,  if.  S.  ^  5278  (U.  S.  Comp. 
Stats.   1901  p.  3597). 

The  General  Assembly  has  seen  fit  to  enact  statutes  in  this 
state  which  are  designed  to  be  in  aid  of  this  congressional  legis- 
lation, and  impose  the  duty  of  extradition  upon  the  governor  in 
all   cases  falling  within   the   pinwicw   of  the   Federal   Constitution. 


§    3  SCOPE  OF   THE  REMEDY.  819 

Code,  1876,  §§  3977-3990-     It  is  needless  that  we  should  refer  to 
these  in  detail. 

It  is  not  denied  that  the  great  function  of  the  writ  of  habeas 
corpus  is  the  liberation  of  those  who  may  be  imprisoned  without 
just  authority  of  law.  But  it  is  contended  that  this  is  a  case  of 
which  the  state  courts  have  no  jurisdiction  because  the  petitioner 
is  shown  to  have  been  in  the  custody  of  one  holding  him  under 
the  authority  of  the  laws  of  the  United  States,  and  who  must 
be  regarded  as  acting  pro  hac  vice  as  an  officer  or  agent  of  the 
federal  government.  The  argument  seeks  to  bring  this  cause 
within  the  principle  settled  in  Tarble's  case,  13  Wall.  397,  (20 
L.  Ed.  597)  decided  by  the  Supreme  Court  of  the  United  States 
in  1871,  and  holding  that  no  judicial  officer  of  a  state,  has  juris- 
diction to  issue  a  writ  of  habeas  corpus  for  the  discharge  of  any 
person  "held  under  the  authority,  or  claim  or  color  of  the  author- 
ity, of  the  United  States,  by  an  officer  of  that  government."  The 
petitioner  in  that  case  was  an  enlisted  soldier,  in  the  army  of 
the  United  States,  who  sought  to  be  discharged  from  the  custody 
of  a  recruiting  officer  of  the  Federal  Government.  The  same 
principle  had  been  virtually  settled  in  Booth's  case,  21  How. 
(U.  S.)  506  (16  L.  Ed.  169)  decided  in  the  year  1858,  a  decision 
involving  the  validity  of  proceedings  under  the  Fugitive  Slave  Law. 
The  present  case  does  not,  in  our  judgment,  come  within  the 
scope  of  the  above  principle,  or  the  reason  upon  which  it  is  based, 
which  is  to  prevent  a  conflict  of  jurisdiction  tending  to  a  collision 
between  the  state  and  federal  governments.  Tarble's  case,  supra: 
Ex  parte  Le  Bur,  49  Cal.  159;  Code  1876,  4936.  The  relator. 
Centner,   in  whose  custody  the  petitioner  was   shown"  to  be,   was 

jTo!~an  officer  or  agent  of  the  federal  government.  He  was  the 
ageiTTof  the  state  of  Pennsylvania  whose  executive^ had  empowered" 
him  to  make  this  demand  upon  the  executive  authority  oTlhTs"  state. 
It  Is"  no  answer  that  the  authority  is  exercisecT^uT'eibedience  to  the 
provisions  of  an  act  of  congress,  passed  for  the  enforcement  of  the 
extradition  clause  of  the  federal  constitution.  This  provision  is 
well  said  to  be  in  the  nature  of  "a  treaty  stipulation  between  the 
states  of  the  Union,"  as  binding  upon  the  states  as  though  it 
was  a  part  of  the  constitution  of  each  state,  Hibler  v.  State,  43 
Tex.  197.  But  in  Kentucky  v.  Denison,  24  How.  66  (16  L.  Ed. 
717),  it  was  said  that  //  the  governor  ofa  state  declinedjn.suz- 
ren-der  a  fu^^iiive  criviTnal  on  tlTe "requisitio n'^f " tKc  governor  of 
a  sister  sfafc,  the  federal  gpyerjvment  had  no  constitutional  poWef 

~tu  use  any  coercive  means  toconipdJiim.'"  It  was  further  asserted 
"that  this  duty  was  "merely  ministerial" — "that  is  to  cause  the  party 
to  be  arrested  and  delivered  to  the  agent  or  authority  of  the 
state  where  the  crime  was  committed."  In  Taylor  v.  Tainter,  16 
Wall.  366,   (21  L.  Ed.  287),  the  duty  to  deliver  or  surrender  was 


820  EX    PARTE  ALABAMA,   IN   RE   MOHR,  §    3 

pronounced  to  be  one  "not  absolute  and  unqualified"  but  dependent 
upon  "the  circumstances  of  the  case."  As  there  said  "in  such 
cases  the  governor  acts  in  his  official  capacity  and  represents  the 
sovereignty  of  the  state."  Possibly  this  executive  duty  may  be 
regarded  as  qua  si- judicicil  in  some  of  its  aspects,  but  this,  in  our 
view  is  not  necessarily  material  in  its  bearing  upon  the  question 
before  us.  The  state  has  seen  fit  to  legislate  in  aid  of  this  con- 
gressional legislation,  rendering  perhaps,  the  duty  of  the  governor 
one  of  more  perfect  obligation,  if  possible.  Code  §  3977-78.  And 
while  it  was  said  by  Mr.  Justice  Story  in  Prigg  v.  Commonwealth 
of  Pennsylvania,  16  Pet.  539,  (10  L.  Ed.  1060),  that  such  state 
legislation  was  prohibited  by  implication,  as  to  matters  in  refer- 
ence to  which  congress  has  already  legislated,  it  seems  now  to  be 
the  better  opinion  that,  where  state  laws  on  this  subject  are  not 
repugnant,  but  auxiliary  to  those  passed  by  congress,  they  may 
be  upheld  upon  the  principle  of  the  right  to  exercise  the  power 
of  the  domestic  police.  Bish.  Cr.  Proc.  §  223 ;  Spear  on  Extradi- 
tion, 267;  Hurd.  on  Hab.  Cor.  633-636;  Work  v.  Carrington,  (34 
O.  St.  64),  32  Am.  Rep.  345.  Congress  has  not  designated  the 
practice  or  mode  of  procedure  by  which  the  fugitive  is  to  be  ar- 
rested and  secured,  and  as  to  this  there  can  be  no  valid  objection 
to  state  legislation.  It  is  merely  providing  "adequate  means  and 
facilities  for  the  accomplishment  of  such  extradition." — E.v  parte 
Amnions,  34  O.  St.  518;  Coffman  v.  Keightley,  24  Ind.  509;  How- 
ever this  may  be,  we  are  of  the  opinion  that  Gentner  was  not  the 
agent  of  the  general  government  in  any  proper  or  legal  sense,  but 
of  the  executive  authority  of  the  state  which  made  the  demand  for 
Mohr's  extradition.  E.r  parte  Gist,  26  Ala.  156,  164.  It  has 
long  been  the  general  if  not  universal  practice  of  the  state  courts 
to  exercise  jurisdiction  in  such  cases,  by  issuing  writs  of  habeas 
corpus,  in  order  to  test  the  legality  of  the  imprisonment.  This 
jurisdiction  is  expressly  recognized  by  section  4957  of  the  code, 
and  may  now  be  considered  as  fully  established,  upon  unassailable 
grounds,  throughout  the  various  states.  This  court  does  not  aspire 
to  the  ambition  of  being  the  first,  and  perhaps  the  only  one  of  the 
state  tribunals  of  last  resort,  to  assail  or  deny  a  jurisdiction  which 
is  not  only  just  to  the  constitutional  sovereignty  of  the  states. 
but  favorable  to  the  preservation  of  the  citizen's  liberty  and  which 
is,  at  the  same  time,  otherwise  so  salutary  in  its  juridical  influences, 
as  well  as  honorable  in  its  antiquity. — Spear's  law  of  Extraor. 
207-306;  Cooley's  Const.  Eim.  (5th  ed.)  16,  note  i;  Hurd  on 
I  fab.  Cor.  621-632;  Rorer  on  Interstate  Law,  223;  Whar.  Cr.  PI. 
v'l'  Pr.  (8th  ed.)"  §35;  Code  of  Alabama,  1876,  ^§  4936;  Com.  v. 
Hall,  9  Grav,  262,  (60  Am.  Dec.  285)  ;  llx  parte  Thornton,  0  Tex. 

63.S- 

We  ciicdniUcr  more  difficulty  in  the  solution  of  the  other  ques- 


§    3  SCOrE  OF  THE  REMEDY.  82 1 

tions  presented.  Is  it  permissible  to  show  that  the  case  is  one 
not  coming  within  the  provisiuns  of  the '  constitution  and  act  of, 
Congress,  because  ibe  i)arty  charged  is  not  a  fugitive  from  justice, 
having  committed  llie  alleged  offence,  if  at  all,  only  constructively 
while  outside  of  the  territorial  jurisdiction  of  the  demanding  state  ? 
Of  are  the  papers  in  the  case  in  connection  with  the  warrant  of  ar- 
rest issued  by  the  governor  of  this  state,  to  be  regarded  as  importing 
absolute  verity  in  this  particular,  so  as  to  be  incapable  of  contra- 
diction ? 

The  statute  provides  that  if  the  return  to  the  writ  of  habeas 
corpus  shows  that  the  petitioner  is  "in  custody  for  any  public 
offense  committed  in  any  other  state  or  territory,  for  which  by 
the  constitution  and  laws  of  the  United  States,  he  should  be  de- 
livered up  to  the  authority  of  such  state  or  territory,"  he  should 
be  remanded. — Code  of  1876,  §  4957-  This  is,  perhaps,  merely 
declaratory  of  what  the  law  would  require  in  the  absence  of  the 
statute.  The  power  claimed  by  the  prisoner  is  the  right  to  show 
that  his  case  is  one  outside  of  the  class  intended  to  be  covered  by 
the  constitution  and  laws  of  the  United  States. 

The  authorities  are  not  in  harmony  as  to  what  questions  may 
be  reviewed  by  habeas  corpus  in  cases  of  extradition.  It  seems_ 
very  certain  that  there  is  no  po w er  to  go^, b_^iQ.d_th.e ., ilidictment, 
or  affidavit,  "with  the  "A*tcw  "ofTnvestigating  the  prisoner's  guilt 
"or" innocence. — In  re  Clark.  0  Wend.  212.  He  cannot  be  put  upon 
inal  /crr-tte  crime  with  which  he  is  charged,  nor  can  any  inquiry 
be  made  into  the  merits  of  his  defence,  or  mere  formal  defects^ 
in  the  charge.  These  inquiries  are  reserved  for  the  courts  o\  the 
demanding  state,  having  jurisdiction  of  the  offence.  People  v. 
llrady,  56  N.  Y.  182 ;  Robinson  v.  Flanders,  29  Ind.  10.  Con- 
gress has  seen  fit  tO'  adopt  special  legislation  regulating  this  phase 
of  the  evidence  in  the  case.  The  act  of  1793  makes  conclusive 
the  production  of  a  copy  of  the  indictment  found  or  an  affidavit 
made  before  the  magistrate  of  the  demanding  state,  "charging 
the  person  demanded  with  having  committed  treason,  felony,  or 
other  crime,"  certified  as  authentic  by  the  governor  of  such  state. — 
U.  S.  Rev.  Stats.  §  5278  (U.  S.  Corhp.  Stat.  1901,  p.  3597.)  These 
papers,  if  in  due  form,  are  made  conclusive  evidence  of  the  guilt 
of  the  accused,  when  assailed  on  habeas  corpus.  It  may  be^CQj^, 
sidered,  therefore,  as  the  settled  doctrine  of  the  C(mrts,  that  a 
prima  facie  case  is  made,  when  tlie  return  to  the  writ  of  habeas 
corpus  shows: — (i)  A  demand  or  requisition  for  the  [)risoner  iiiacle 
l5yThe  executive  of  'ahotHer'^ sTate,  fi^iiUwhTch  he  is  alleged  to  have 
fled;  (2)  a  copy  of  the  indictment  found,  or  af(^(la^'^t  made  before 
a  magistrate,  charging  the  alleged  fugitive  with  the  commission 
of  the  crime,  certified  as  authentic  by  the  executive  of  the  state 
making  the  demand  :  (3)  the  warrant  of  the  governor  authorizing  the 


822  EX   PARTE  ALABAMA,    IN    RE    MOIIR.  §    3 

^rrest.  Where  these  facts  are  made  to  appear  by  papers  regular  on 
meir'lacc,  there  is  a  weight  of  authority  holding  that  the  prisoner 
is  prima  facie  under  legal  restraint. — Spear's  Law  of  Extr.  208-303 ; 
State  V.  Schlem,  4  Harr.  (Del.)  477;  Matter  of  Clark,  9  Wend. 
212;  In  re  Hooper,  52  Wis.  699,  58  N.  W.  741 ;  People  v.  Brady, 
S6  N.  Y.  182 ;  Bump's  Notes  on  Const.  Dec.  295-297 ;  Johnston 
V.  Riley,  13  Ga.  97. 

Many  of  the  cases  hold  that  the  warrant  of  the  governor  recit- 
ing these  jurisdictional  facts,  is  prima  facie  sufficient  to  show  that 
all  these  necessary  prerequisites  have  been  complied  with  prior 
to  its  issue  by  him,  although  as  to  this  proposition  there  is  a  con- 
Hict  of  opinion.  Davis'  case,  122  Mass.  324;  Kingsbury's  case,  106 
Mass.  22^ ;  Robinson  v.  Flanders,  29  Tnd.  10 ;  Hartman  v.  Aveline, 
63  Ind.  344  (30  Am.  Rep.  217.)  Which  of  these  is  the  correct 
view  we  need  not  decide,  as  all  the  proper  papers  in  due  form 
are  set  out  in  the  return  made  to  the  writ  by  the  respondent, 
Centner,  who  is  the  relator  in  this  proceeding. 

It  is  obvious  that  the  extradition  clause  of  the  federal  consti- 
tution has  reference  only  to  a  specified  class,  and  not  to  all  crim- 
inals. Its  language  is,  a  person  charged  with  any  crime  "who 
shall  flee  from  justice  and  be  found  in  another  state."  Art.  iv, 
sec.  2.  The  act  of  congress  is  more  emphatic,  if  possible,  in  de- 
scribing such  person  as  an  actual  fugitive,  characterizing  him  as 
one  "who  has  fled"  and  the  state  in  which  he  is  found  as  the  one 
to  which  he  "has  fled."  U.  S.  Revised  Statutes  §  5278  (U.  S. 
Comp.  Stats,  p.  3597.)  ^t  may  be..g9j.isidered  clear,  therefore,  with- 
out any  conflict  of  authority,  that  the  constitution  and  laws  of  con- 
gfress  'ScT'ifTGt  provide  for  the  extradition  of  any  persoiis^xcepj: 
those  who  may  have  fled  from  or  left  the  demanding  state  as 
fugitives  from  the  justice  of  that  state.  Whart.  Cr.  PI.  &  Pr. 
(8th  ed.)  31,  and  cases  cited;  Spear's  Law  of  Extrad.  273-310- 
316.  "The  offence"  says  Mr.  Cooley,  "must  have  been  actually 
committed  within  the  state  making  the  demand  and  the  accused 
must  have  fled  therefrom."  Cooley 's  Const.  Lim.  (5th  ed. — 16 
note  I. 

There  is  a  difference  of  opinion  as  to  what  nnist  be  the  exact 
nature  of  this  flight  on  the  part  of  the  crimiual,  but  the  better 
view,  perhaps,  is  that  any  person,  is  a  fugitive  within  the  purview 
of  the  constitution,  "who  goes  into  a  state,  commits  a  crime,  and 
then  returns  home."  Kingsbury's  case,  106  Mass.  223;  Hurd  on 
Habeas  Corpus  606.  Tn  tlie  case  of  Voorhees,  32  N.  J.  L.  141, 
he  was  characterized  as  (me  "who  commits  a  crime  in  a  state  and 
withdraws  himself  from  such  jurisdiction."  This  point,  however, 
we  need  not  decide,  as  it  is  shown  tliat  the  prisoner,  Mohr,  has 
never  been  into  tlic  jurisdiction  of  the  demanding  state  since  the 
commission  of  tlic  alleged  crime.  Tie  cannot,  therefore,  be  said 
to  be  a  fugitive  from  the  justice  of  that  state. 


§    3  SCOPE  OF    niE  REMEDY.  823 

It  is  clear  to  our  iiiiiid  that  crimes  zvhich  are  not  actually 
b'iit  which  arc  only  constructively  committed  within  the  jurisdiction 
''ofthe_  demanding  state,  do  not  fall  within  the  class  of  cases  in- 
iendea  to  he  emWraccWBy  the  consfituiion  or  act  of  congress.  Such 
^  'teasf  is"t1lier  Ttile,  rmless  t1ie~criminal  afterwards  goes  into  such 
state,  and  departs  from  it,  thus  subjecting  himself  to  the  sovereignty 
of  its  jurisdiction.  The  reason  is,  not  that  the  jurisdiction  to 
try  the  crime  is  lacking,  but  that  no  one  can  in  any  sense  be 
alleged  to  have  "fled"  from  a  state,  into  the  domain  of  whose 
territorial  jurisdiction  he  has  never  been  corporally  present  since 
the  commission  of  the  crime.  And  only  this  class  of  persons  are 
embraced  withm  either  the  letter  or  the  spirit  of  the  constitution, 
the  purpose  of  which  is  to  make  the  extradition  of  fugitive  crim- 
inals a  matter  of  duty,  instead  of  mere  comity  between  the  states. 
The  language  of  the  constitution  and  the  law  of  congress  are  en- 
tirely free  from  ambiguity  on  this  point,  being  too  obvious  to 
admit  of  judicial  construction ;  and  the  authorities  are  uniform  in 
adoption  of  this  view  as  to  its  manifest  meaning. — Whart.  Cr. 
PI.  &  Pr.  (8th  ed.)  §  31;  Spear's  Law  of  Extrad.  309-316;  Voor- 
hees'  case,  32  N.  J.  L.  147 ;  Kingsbury's  case,  106  Mass.  223 ; 
Ex  parte  Smith,  3  McLean  (U.  S.)  121;  (Fed.  Cas.  No.  12,968); 
Wilcox  V.  Nolze,  34  O.  St.  520. 

We  are  of  the  opinion  that  it  was  never  intended  by  congress 
in  their  enactment  of  the  law  of  1793,  that  the  finding  of  the 
governor  of  a  state,  that  one  is  a  fugitive  from  justice,  should  be 
conclusive  of  the  fact,  incapable  of  contradiction  by  facts  show- 
ing the  contrary.  It  is  an  important  feature  of  the  law,  throwing 
some  light  upon  its  proper  construction,  that  while  it  expressly 
prescribes  the  mode  by  which  evidence  of  the  crime  charged  shall 
be  avithenticated,  it  nowhere  prescribes  how  the  fact  that  he  is  a 
fugitive  from  justice  shall  be  established.  There  seems  to  us  to 
have  been  a  good  and  sufficient  reason  for  this  distinction.  Noth- 
ing was  more  proper  than  the  policy  of  precluding  the  fugitive 
from  disputing  the  certified  records  from  the  courts  of  a  sister 
state,  in  view  of  the  constitutional  requirement,  that  "full  faith 
and  credit"  shall  be  given  in  each  state  to  "the  records  and  judicial 
proceedings  of  every  other  state."  Const.  U.  S.  Art.  IV,  §  r. 
But  no  such  reason  applies  to  the  implication  of  the  defendant's 
being  a  fugitive,  because  he  is  found  in  another  state  than  the 
one  in  whose  courts  the  charge  is  pending.  It  may  be  asserted 
that  it  was  withm  the  power  of  the  governor  to  ascertain  and 
investigate  this  fact  before  he  issued  the  warrant,  so  as  to  satisfy 
himself  of  the  truth.  Perhaps  this  is  the  correct  view,  but  this 
duty  must,  in  its  very  nature  be  discretionary.  In  practice,  the 
fact  of  the  criminal's  flight  is  usually  shown  by  affidavit,  but  this 
cannot  be  regarded  upon  any  principle  known  to  us  as  conclusive, 


824  EX    PARTE    ALABAMA,    IN    RE    MOHR.  §    3 

in  the  absence  of  statutory  regulation  so  declaring  the  law.  The 
better  view  seems  to  us  to  be,  that  one  of  the  purposes  of  pre- 
termitting express  congressional  legislation  on  this  point  was  to 
refer  the  matter  to  executive  determination,  subject  to  review 
bv  habeas  corpus  in  the  courts  in  all  proper  cases.  The  papers 
being  regular,  the  governor  has  the  right  to  suppose  that  a  prima 
facie  case  exists  for  the  warrant,  and  the  safer  practice  would 
seem  to  be,  that  the  accused  should  be  remitted  to  the  courts  to 
establish  matters  of  defense  aliunde  the  record.  Especially  is  this 
true  in  doubtful  cases. 

As  we  have  said,  the  grounds  of  imprisonment  in  this  class 
of  cases  are  constantly  reviewed  by  the  habeas  corpus  in  the  state 
courts.  Whar.  Cr.  PI.  &  Pr.  §  35.  It  is  just  as  material  to  show 
that  the  prisoner  does  not  come  within  the  law,  on  the  ground  that 
he  has  never  fled  from  the  demanding  state,  as  on  the  ground 
that  he  is  not  the  identical  person  intended  to  be  indicted,  or 
that  there  is  no  authenticated  copy  of  the  indictment,  or  other 
charge  against  him.  All  these  facts  must  concur,  before  the  law 
authorizes  the  requisition  to  be  made,  or  the  warrant  of  arrest  to 
issue.  They  are  jurisdictional  facts,  in  the  absence  of  which 
the  prisoner  is  excluded  from  the  operation  and  influence  of  the 
law.  and  no  extradition  can  be  constitutionally  authorized  by  con- 
gressional legislation. — Whar.  Cr.  PI.  &  Pr.  (8th  ed.)   §§  31-34-35. 

This  view  is  supported  by  the  best  considered  cases,  and  parol 
evidence  has  been  often  admitted  by  the  courts,  in  proceedings  by 
habeas  corpus,  for  the  purpose  of  showing  that  the  warrant  of 
the  governor  was  improvidently  issued  under  the  mistaken  belief 
that  the  prisoner  was  a  fugitive. 

The  case  of  Wilcox  v.  Nolze,  34  O.  St.  520,  decided  in  the 
year  1878,  was  a  case  of  this  kind :  The  prisoner  had  been  in- 
dicted in  the  courts  of  New  York  for  obtaining  goods  by  false 
p.retences.  The  governor  of  that  state  sent  a  requisition  to  the 
governor  of  Ohio,  demanding  the  prisoner's  extradition  as  a  fugi- 
tive from  justice,  under  the  act  of  congress  providing  for  such 
cases,  the  paj^ers  all  being  regular  in  form.  The  prisoner  was 
allowed,  upon  habeas  corpus,  to  review  the  governor's  finding, 
that  he  was  a  fugitive  from  justice.  Parol  evidence  was  admitted 
to  show  that  the  crime  had  been  only  constructively  committed, 
and  that  he  had  never  been  in  the  demanding  state,  and  could 
not,  therefore  have  fled  from  it.  The  court  said: — "Whether  or 
not  the  accused  committed  the  acts  complained  of  while  actually 
l^rcscnt  in  the  demanding  state,  is  jurisdictional ;  and  it  is  clearly 
conipctcnl  in  such  a  case,  to  show  by  parol  evidence  a  defect  in 
the  rxcrutive  power,  however  regular  the  extradition  papers  mav 
he  in  the  matter  of  form." 

Tn   Il.-irlinan  v.  Avelinc,  (\'i,  Ind.  344   (30  .\ni.  Rep.  217)   the  ac- 


§    3  SCOPE  OF   THE  KEMEDY.  825 

cused  had  been  arrested  under  a  warrant  issued  by  the  governor 
of  Indiana,  on  a  requisition  from  the  governor  of  the  state  of 
IlHnois,  charging  him  with  the  crime  of  obtaining  goods  by  false 
pretenses  in  the  latter  state,  to  the  custody  of  whose  agent  he 
had  been  delivered  on  demand.  Upon  the  writ  of  habeas  corpus 
being  sued  out,  it  was  shown  that  the  accused  was  not  in  the 
state  of  Illinois  at  the  time  of  the  commission  of  the  offense,  but 
in  the  state  of  Indiana,  where  he  resided,  and  that  he  had  not 
fled  from  the  former  state.  It  was  objected  that  the  state  courts 
had  no  jurisdiction  to  go  behind  the  warrant  of  arrest  issued  by 
the  governor,  but  the  court  held  that  there  was  nothing  in  the 
constitution  of  the  United  States  or  the  laws  of  Congress  which 
precluded  the  inquiry.  It  was  said  that  the  mere  recitals  in  an 
executive  requisition,  in  the  absence  of  an  affidavit,  showing  an 
actual  fleeing  from  justice,  did  not  authorize  the  issue  of  the  war- 
rant. 

The  same  view  was  taken  by  the  supreme  court  of  Iowa,  in 
Jones  V.  Leonard,  50  la.  106,  s.  c.  32  Am.  Rep.  116,  a  comparatively 
recent  abjudication.  A  statute  of  that  state  provided  that  requisi- 
tions for  fugitive  criminals  should  be  "accompanied  by  sworn  evi- 
dence that  the  party  charged  is  a  fugitive  from  justice."  The 
e\idence  accompanying  the  requisition  consisted  of  an  affidavit, 
charging  that  the  plaintiffs  "were  fugitives  from  justice"  which  the 
governor  determined  to  be  sufficient.  It  was  held  that  the  prisoners, 
after  arrest,  could  review  the  conclusion  reached  bv  the  governor, 
and  show  that  they  were  not  fugitives  from  the  state  of  Massachu- 
setts, because  the  crime  charged,  which  was  obtaining  goods  by 
false  pretenses,  had  been  constructively  committed  by  statements 
made  in  a  letter,  w^ritten  from  the  state  of  Iowa,  the  state  of  their 
domicil.  The  court  decided  that  the  extradition  law  of  congress 
did  not  apply  to  cases  of  constructive  crime  like  that  under 
consideration,  and  that  it  was  competent  for  the  state  courts,  to 
review  the  conclusion  of  the  governor.  It  was  said  by  the  court: — 
"If  the  decision  of  the  governor  is  final  and  conclusive  as  to  this 
question  it  must  be  so  as  to  all  questions  touching  the  extradi- 
tion of  a  citizen  under  the  constitutional  provision  above  quoted." 
And  again :  The  governor  of  this  state  is  not  clothed  with  judicial 
powers,  and  there  is  no  provision  of  the  constitution  or  laws  of 
the  United  States,  or  of  this  state,  which  provides  that  his  deter- 
mination is  final  and  conclusive  in  the  case  of  the  extradition 
of  the  citizen."  It  was  accordingly  held  by  the  court  that  the 
decision  of  the  governor  was  only  prima  facie  correct,  and  that  it 
was  review^able  by  the  courts,  on  petition  sued  out  by  the  pris- 
oner for  the  writ  of  habeas  corpus. 

The  case  of  Hibler  v.  State,  43  Tex.  197,  is  in  harmonv  with 
the   same   view.      While   it   was   there   held   that   the   governor   of 


826  EX    PARTE   ALABAMA,    lx\    KE    MOITR.  §    3 

Texas  prima  facie  had  authority  to  issue  his  warrant  of  arrest, 
where  the  papers  were  regular,  upon  the  mere  representation  in  the 
requisition,  that  the  accused  was  a  "fugitive  from  justice,"  it  was 
decided  that  this  was  a  question  of  fact,  which  was  disputable  by 
proof  to  the  contrary,  showing  that  "the  presumption  upon  which 
the  governor  had  acted  was  unfounded  in  fact,  and  that  thereby 
this  process  was  being  perverted  to  his  injury." 

There  are  other  decisions  strongly  corroborative  of  the  same 
view,  but  which  we  deem  it  unnecessary  to  review.  Ex  parte 
Joseph  Smith,  3  McLean  (U.  S.  C.  C.)  121,  (Fed.  Cas.  No.  12968)  ; 
Manchester's  case,  5  Cal.  237;  Rorer  on  Interstate  Law,  221-2. 

We  are  cited  by  counsel  to  the  case  of  Ex  parte  Swearingen,  13 
S.  C.  74,  as  an  authority  adverse  to  the  foregoing  views.  The 
point  decided  in  that  case  was  merely,  that  the  absence  of  an 
affidavit,  that  the  petitioner  was  a  fugitive  from  justice,  was  not 
fatal  to  the  requisition ;  and  from  this  conclusion  the  chief  justice 
dissented  in  an  opinion  replete  with  the  force  of  sound  logic. 
The  reasoning  of  the  majority  of  the  court  seemed  to  be  based 
upon  the  false  idea,  that  a  denial  of  the  fact,  that  the  accused 
was  a  fugitive,  was  in  the  nature  of  an  alibi  defense,  going  to  the 
merits  of  the  indictment. 

We  are  of  the  opinion  .that  the  probate  judge  did  not  err  in 
discharging  the  petitioner,  and  that  it  was  competent  for  "Rim "to 
Hea"Poral  evidence  in  order  to  establish  the  fact,  that  the  petitioner 
was  not  a  fugitive  from  justice. 

Any  other  conclusion  than  this  would  establish  a  doctrine  very 
dangerous  to  the  liberty  of  the  citizen.  It  would  greatly  impair 
the  efficacy  of  the  proceeding  of  habeas  corpus,  which  has  often 
been  characterized  as  the  great  writ  of  liberty,  and  may  be  re- 
garded not  less  than  the  right  of  trial  by  jury,  as  one  of  the  chief 
corner-stones  in  our  judiciary  system.  It  might  justly  be  considered 
as  alarming  to  announce,  that  a  writ  which  has  so  frequently  been 
used  for  centuries  past  to  prevent  the  encroachment  of  kings  u])on 
popular  liberty,  is  inadequate  for  the  just  purposes  for  which  it 
has  been  invoked  in  this  cause. 

The  application  made  by  the  relator  must  be  denied.  Brickell, 
C.  J.,  dissenting. 

'[  h;it  a  fugitive  from  justice  has  the  right  to  invoke  the  powers  of  cithet 
state  or  federal  courts  to  inquire  into  the  legality  of  executive  proceed- 
ings looking  to  his  surrender.  Roberts  v.  Reilly,  116  U.  S.  80;  Fowler, 
In  re,  t8  Blatch.   (U.  S.)   430;  Thornton,  Ex  parte,  9  Tex.  635. 

Sufficiency   of   indictment   hut   not   the   guilt   or   innocence   of   the   accused,. 
a   proper    subject    for    investigation    on    habeas    corpus.      Roberts,    In    re,   24 
Fed.  132;  People  v.  Brady,  56  N.  Y.  182;  .Swearingen,  Ex  parte,  13  S.  Car. 
74;  Voorhces,  In  re,  32  N.  J.  L.   141;  Greenough,  In  re,  31   Vt.  279. 


§    3  SCOPE   OF   THE   REMEDY.  827 

In  re  ROBERTS. 
1885.     U.  S.  DiST.  Court,   S.  D.  Georgia,  E.  D.     24  Fed.   132. 

Speer,  J, — The  constitution  of  the  United  States,  art,  4,  §  2,  pro- 
vides that  a  person  charged  in  any  state  with  treason,  felony  or  other 
crime,  who  shall  flee  from  justice  and  be  found  in  another  state, 
shall,  on  the  demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime.  This  provision  of  the  organic  law  re- 
ceived the  careful  consideration  of  the  federal  convention.  Cer- 
tain changes  were  made  in  phraseology  showing  the  settled  pur- 
pose of  its  framers  to  make  it  the  policy  of  the  union  to  surrender 
in  one  state  the  fugitives  from  justice  in  another.  It  is  a  settled 
rule  of  interstate  comity,  and  imposes  an  absolute  obligation  on 
each  state,  in  a  proper  case  made  before  its  chief  executive  ofificer, 
to  surrender  and  facilitate  the  extradition  of  parties  charged  with 
crime  in  the  other  states  of  the  union.  By  the  act  of  congress 
1793,  (Section  5278  of  the  Revised  Statutes)  appropriate  legisla- 
tion for  the  enforcement  of  this  constitutional  provision  was  had ; 
and  this  legislation  has  itself  received  the  lofty  sanction  afforded 
by  the  approval  by  the  supreme  court  of  the  United  States  of  its 
constitutionality  and  effectiveness  to  enforce  the  original  compact 
between  the  states  upon  this  subject,  so  important  to  the  punish- 
nient  of  crime  and  the  maintenance  of  social  order.  Prigg  v.  Com, 
16  Pet.  539.  Nor  have  the  several  states  been  tardy  in  the  enact- 
ment of  auxiliary  legislation  to  accomplish  the  object  for  which 
the  national  law  is  framed ;  and  the  state  of  Georgia  is  direct  and 
explicit  in  its  enactments  to  this  ends.     See  Code,  §§  54-58. 

While  the  duty  of  the  executive  is  thus  plainly  marked  out 
it   is][atso~"ttTe7pfovihceof  Jl^^  on    inquiry,   by  means    of 

Tiabeas  corpus,  to  determine  the  legality  of  the  detention  of  the 
party  whose  extradition  is  sought ;  and  since  the  federal  legislation 
of  necessityL-is.  invoked  to  extradite  the  prisoner,  the  courts  of 
the  United  States  have  jurisdiction  to  determine  the  question  of 
the  legality  of  his  arrest.  Rev.  St.  735.  The  courts  of  this  state 
have  also  concurrent  jurisdiction  of  the  same  question,  but  the  re- 
sulting judgments  of  this  jurisdiction  are  not  necessarily  decisive, 
and  do  not  conclude  the  courts  of  the  United  States  on  this  Fed- 
pk-al  question,  though  they  are  entitled  to  great  respect,  and  are 
strongly  advisory. 

^n  the  case  before  the  court,  the  duly-authenticated  copy  of 
the  m^atctment  of  the  defendant  and  one  Walton  for  the  offense 
of  grand  larceny,  said  indictment  purporting  to  have  been  returned, 
15}'  the  grand  Jury  of  the  state  and  county  of  New  York,  together 
with  the  requisition  of  the  goverri6r~5f-the  state  of  New  York,  and 


828  IX    RE   ROBERTS.  §    3 

the  consequent  order  of  the  governor  of  ricorgia.  is  presented  as 
'the~wafrant  for  the  arrest  and  proposed  extradition. 

It  is  objected  by  the  counsel  for  the  relator  that  the  indictment 
does  not  show  a  proper  charge  of  crime.  It  is  urged  that  the 
crime  set  out,  towit,  grand  larceny,  is  a  felony,  and  that  the  in- 
clictnient  is  against  several  defendants,  and  that" th"ef e "ai^e  iio  aver- 
ments showing  the  degrees  of  the  giiilt,  whether  as  principal  in 
the  first  or  second  degree,  or  as  an  accessory  before  or  after  the 
fact.  This  objection  in  the  opinion  of  the  court,  would  haveHBeen 
dangerous  to  the  validity  of  the  indictment,  it  being  a  felony, 
under  the  rules  of  common  law.  This  indictment,  however,  must 
be  considered  in  the  light  of  the  statutory  regulations  pertinent 
thereto  in  the  state  of  New  York,  and  we__find  that  in  that  state 
parties  charged,  with  felony  are  indicted_  jomtlv  preciselV_as_wgfe' 
misdemeanors  at  common  law.     2  Rev.  St.  N.  Y.  §  698. 

In  New  York  it  appears  that  this  rule  applies  to  the  whole 
range  of  felonies,  and,  as  a  consequence,  it  follows  that  principals 
in  the  second  degree  may  be  indicted  and  prosecuted  as  principals 
in  the  first.  This  is  the  doctrine  of  the  common  law,  where  the 
punishment  is  the  same.  Archb.  Crim.  PI.  (8th  Am.  Ed.)  63. 
The  objection,  therefore,  is  not  sustained. 

It  is  further  objected  to  the  legality  of  this  detention  that  the 
indictment  does  not  properly  allege  the  ownership  of  The  bonds 
alleged  to  have  been  stolen,  and  tliat  the  ancgallons  that  they"^ 
were  the  bonds  of  the  P)Cthlehem  Iron  Company,  without  alleging 
the  corporate  character  of  such  company,  is  a  fatal  defect.  Un- 
questionably there  is  authority  pointing  to  this  conclusion,  \fter 
careful  and  anxious  consideration  of  this  question  the  court  feels 
it  to  be  improj^er  that  it  should  discharge  the  defendant  on  this 
ground,  and  thinks  it  in  every  view  safer  and  the  better  rule  to 
remit  the  question  of  the  sufficiency  of  the  indictment  to  be  tried 
and  determined  by  the  courts  of  the  state  in  which  it  was  found. 
The  settled  policy  of  the  government  being  to  facilitate  the  extra- 
dition of  fugitives  charged  with  crime,  and,  in  view  of  the  great 
importance  of  this  policy  to  the  commercial  prosperity  of  the 
country  and  the  integrity  in  business  transactions  between  the 
citizens  of  the  several  states,  it  would  be  a.  dangerous  precedent,  and 
as  well  in  conflict  with  eminent  authority,  to  hold  that  such  mat- 
ters of  technical  irregularity  must  (U'n\    the  extradition. 

Certain  affidavits  are  alsf)  offered  1j\-  the  relator,  the  practical 
effect  of  which  is  a  denial  of  the  guilt.  It  is  sufficient  to  say^ll^ 
the  court  in  thjs  jjroceeding  will  not  consider  that  question..,  A 
proper  charge  of  crime  having  been  presented  to  the  court,  J^ 
is  our  undoubted  duty  to  decline  to  investigate  the  guilt  or  inno- 
cence of  the  prisoner.  The  authorities  upon  this  question  are' 
niini(Tous,  conclusive  anfl  adverse  to  the  contention  of  the  counsel 


§    3  SCOi'E  OF  THE   REMEDY.  829 

for  the  relator.  It  would  be  otherwise  were  the  arrest  made  upon 
preliminary  process,  and  before  indictment.  In  that  event  inves- 
tig^ation  would  be  had,  at  least,  to  disclose  if  there  be  a  prosecu- 
tion in  good  faith,  and  if  there  be  a  probable  cause  to  suspect 
the  guilt  of  the  party  accused. 

It  is  further  urged,  and  with  great  apparent  confidence,  by  the 
distinguished  counsel  for  the  relator,  that  the  facts  do  not  show 
that  the  relator  is  a  fugitive  from  justice.  It  is  the  opinion  of  the 
court  that  one  ivho  goes  into  a  state  and  commits  a  crime,  and 
then  returnslToTne,  is  as  much  a  fugitive  from  justice  as  though 
he  had  commtttcd  a  crime  in  the  state  in  zifhich  he  resided  and 
then  fled  to  some  other  state. 

With  the  other  considerations  personal  to  the  relator  advanced 
by  counsel,  the  court  can  properly  have  no  concern.  The  law  is, 
inexorable,  and  the  court  is  but  its  servant,  and  must  like  all  others, 
obey  its  teachings.  Tlie  writ  is  disallowed,  and  the  petition  of  the 
relator  dismissed. 


Ex  PARTE  BROWN. 

1886.     U.  S.  District  Court,  N.  D.  New  York.  .  28  Fed.  653. 

CoxE,  J. — The  petitioner  was,  in  Feb.,  1886.  indicted  in  Erie 
Count}-.  Pemisylvania.  for  ])erjury  alleged  to ^K^v^nBeen  com- 
mitted'  in    that    county    in    May,"f8S5r"Tri' August, i8H5,Tie    left 

Jus  home  in  Pennsylvania  and  went  to  "Brantford,  in  the 
province  of  Ontario.  On  the  24th  of  July,  1886,  he^  was  in- 
duced by  the  false  statements  of  parties  employed  by  those 
interested  in  his  conviction  to  come  into  jth^___siate-  of  New 
YiorK.  No  force  or  violence  was  used,  but  he  was  informed 
and  believed  __that  Youngstown,  New  York,  was  in  the  Do- 
minion of  Canada.  On  arriving  at  Youngstown  he  was  im- 
mediately arresfed.  A  requisition  for  hi?  surrender  was  made  by 
the  governor  of  Pennsylvania  upon  the  governor  of  this  state,  who 
issued  a  warrant  for  his~deirvery  to  the  agent  of  the  former  state. 
The  prisoner  thereupon  applied  for  a  revocation  of  the  w^arrant. 
A  rehearing  was  granted,  additional  evidence  Avas  taken,  and  a  full 
opportunity  accorded  counsel  for  a  presentation  of  their  views. 
After  a  careful  consideration  of  all  the  issues  involved  the  gov- 
ernor decided  not  to  revoke  the  warrant  previously  issued.  The 
petitioner  now  asks  for  a  discharge,  insisting  that  he  is  noT^a" 
'jttffitive  from  justice,  his  presence  here  having  been  obtained  by 
.^iraud.  The  sheriff  makes  return  that  he  holds  the  petitioner  By* 
virtue  of  the  warrant  referred  to.  The  case,  as  presented  to  the 
court,  is  in  the  same  situation  as  when  considered  by  the  governor. 


830  EX   PARTE  liROWN.  §    3 

No  material   fact  has  been  added ;  no  new   proposition   of  law   is 
advanced. 

That  the  court  has  jurisdiction  is  beyond  all  doubt.  In  re  Doo 
Woon,  18  Fed.  Rep.  898;  Ex  parte  Morgan,  20  Fed.  Rep.  298; 
Ex  parte  Smith,  3  McLean,  121  ;  Ex  parte  McKean,  3  Hughes  23. 
It  was  insisted  in  In  re  Robb.  10  Fed.  Rep.  26,  that  the  federal 
courts  have  exclusive  jurisdiction  in  extradition  cases ;  but  this 
view  was  overruled  by  the  supreme  court  in  Robb  v.  Connoly,  1 1 1 
U.  S.  624,  s.  c.  4  Sup.  Ct.  Rep.  544,  where  it  was  decided  that 
jurisdiction  is  concurrent  with  the  courts  of  the  states.  The  de- 
cisions are  by  no  means  unanimous  as  to  the  power  of  the  court, 
in  these  cases,  to  review  upon  habeas  corpus,  and  overrule  the 
decisions  of  the  executive  authority ;  and  the  question  has  not, 
so  far  as  I  have  been  able  to  ascertain,  been  decided  by  the  su- 
preme court. 

In  Ex  parte  Reggel,  114  U.  S.  642,  s.  c.  5  Sup.  Ct.  Rep.  1148, 
the  court  held  that  the  action  of  the  governor,  even  though  sup- 
ported by  slight  evidence,  was  prima  facie  conclusive,  and  proof 
was  required  to  overcome  it.  In  Roberts  v.  Reilly,  1 16  U.  S.  80, 
95  s.  c.  6  Sup.  Ct.  Rep.  291,  it  was  held  that  the  determination  in  the 
warranted  that  the  party  is  a  fugitive  from  justice  must  be  regarded 
as  sufficient  until  the  presumption  in  its  favor  is  overcome  by 
contrary  proof.  In  Leary's  case.  10  Ben.  197,  the  v\^rrant  of 
the  executive  was  held  conclusive  in  some  particulars,  and,  after 
an  elaborate  examination  of  the  authorities,  it  was  strongly  inti- 
mated that  it  would  be  so  held  for  all  purposes  whenever  a  case 
should  be  presented  rendering  such  a  decision  necessary.  See, 
also,  Kentucky  v.  Dennison,  24  How.  66;  State  v.  Buzine,  4  Har. 
572. 

Assuming  the  power  of  the  court  to  reverse  the  decision  of  the 
governor,  there  can  be  little  doubt  of  the  impropriety  of  such  a 
course ;  especially  where  it  appears  that  he  unquestionably  had 
jurisdiction,  and  reached  a  conclusion  only  upon  mature  delibera- 
tion, and  after  a  hearing  had  been  accorded  to  all  parties  inter- 
ested. The  court  should  be  clearl^satisfiecl_  that_an_  error  had 
been  committed~l5eTore  setting~asTde  tfie  solemn  act  of  the  higfi 
official  upon  whom  the  execution  of  these  solemn  duties  is  devolved 
by  Taw."  T  have,  however,  as  requested  at  the  argument,  exammed 
the  questions  presented  as  fully  as  opportunity  will  permit,  and 
see  no  reason  to  differ  from  the  governor  in  the  conclusion  reached 
by  him.  It  was  clearly  his  duty  to  grant  the  extradition  when  it 
appeared,  that  the  petitioner  was  a  fugitive  from  justice,  and  the 
demand  bv  the  executive  authority  of  Pennsylvania  was  supported 
by  nn  inriictmcnt.  duly  authenticated,  charging  the  prisoner  with 
having  committed  perjury  in  ihat  state,  /t.i"  parte  Reggel,  supra. 
No  question   is   raised   as   to   the   sufilicicncy   of   the    indictment. 


§    3  SCOPE  OF   THE  REMEDY,  83 1 

or  of  any  of  the   papers   upon   which   the   p;overnor  acted lt.AL. 

admitted^that  the  petitioner  was  in  the  state  of  JVnnsylvania  at  the 
tTnTe"  cTTarged  in  the  incHctnient ;  that  he  was  a  witness  at  the  trial 
"vvhen  the  perjury  is  alleged  to  have  been  committed;  and  that 
thereafter  lie  removed  to  Canada,  where,  he  remained  until  he 
was^  Induced  to  come  into  this  state. 

In  Roberts  v.  Reill}-,  supra,  the  supreme  court  thus  interprets 
the  law ; — 

"To  be  a  fugitive  from  justice,  in  the  sense  of  the  act  of  con- 
gress regulating  the  suliject  under  consideration,  it  is  not  neces- 
sary that  the  party  charged  should  have  left  the  state  in  which 
the  crime  is  alleged  to  have  been  committed,  after  an  indictment 
found,  or  for  the  purpose  of  avoiding  a  prosecution  anticipated 
or  begun ;  but  simply  that  having  within  a  state,  committed  that 
which  by  its  law  constitutes  a  crime,  when  he  is  sought  to  be  sub- 
jected to  its  criminal  process  to  answer  for  his  offense,  he  has 
left  its  jurisdiction,  and  is  found  within  the  territory  of  another." 

Thus  declined  there  can  be  no  doubt  that  the  prisoner  was  a 
fugitive   from   justice  within  the  meaning  of  the  law. 

The  question  remains  was  the  duty  of  the  executive  to  deliver 
up  the  petitioner  at  all  affected  by  the  fact  that  he  was  induced 
by  the  trickery  and  fraud  of  private  persons  to  come  within  this 
jurisdiction?  I  am  entirely  clear  that  it  was  not.  The  contention 
that  a  partv  charged  with  crime  is  entitled  to  be  released  on 
habeas  corpus,  because  by  stratagem, — which,  though  morally  re- 
prehensible, is  not  criminal  in  a  legal  sense, — he  is  induced  to  come 
within  territory  where  he  may  properly  be  arrested,  is  not  supported 
by  a  single  authority. 

The  case  of  Hadden  v.  People,  25  N.  Y.  373,  falls  far  short  of 
sustaining  the  proposition  that  the  petitioner  was  brought  here  by 
the  commission  of  a  crime  equivalent  to  kidnaping.  In  that  case 
Wallace  was  overcome  and  stupefied  by  drink ;  his  reason  was  de- 
throned ;  he  was  no  longer  a  free  agent.  In  this  condition  he  was 
carried  aboard  a  vessel  about  to  depart  for  a  foreign  port.  Here 
there  was  a  false  statement,  but  nothing  more. — no  physical  restraint 
w^as  used,  no  drugs  w^ere  administered.  The  petitioner  himself 
rowed  the  boat  that  conveyed  him  across  the  river. 

The  criminal  law,  administered,  as  it  is,  for  the  protection  of  the 
whole  people,  does  not  take  cognizance  of  the  means  by  which  al- 
leged offenders  are  apprehended,  so  long  as  no  act  is  done  which 
in  itself,  is  an  infraction  of  law.  But  the  whole  subject  is  so  care- 
fully considered  and  reviewed  in  the  opinion  filed  by  the  governor, 
and  the  reasons  for  his  action  are  so  clearly  stated,  that  further  com- 
ment is  unnecessary. 

The  writ  should  be  dismissed,  and  the  prisoner  remanded. 


832  IX  RE  N0YE5.  §    3 

See  also  Robb  v.  Connolly,  in  U.  S.  624;  Smith,,  Ex  parte,  3  McLean 
(U.  S.),  121;  Doo  Woon.  In  re,  18  Fed.  S98;  Dawson,  Ex  parte,  83  Fed. 
306;  Strauss.  In  re,  126  Fed.  327;  Roberts  v.  Reilly,  116  U.  S.  80. 

But  see  Haddon  v.  People,  25  X.  Y.  },Ti. 


Ix  RE  XOYES. 
1878.     U.  S.  District  Court,  New  Jersey.     17  Alb.  Law  Jr.  407. 

Proceedixgs  by  habeas  corpus  to  secure  the  release  of  the 
petitioner.    The  facts  appear  in  the  opinion. 

Xixox,  J. — I  am  quite  clear  that  the  facts  presented  by  the  return 
and  testimony  in  this  case  preclude  the  court  from  discharging  the 
prisoner  on  these  proceedings,  whatever  may  be  the  opinion  of  the 
court  in  regard  to  the  method  of  the  agents  of  the  state  to  obtain 
the  body  of  the  petitioner,  and  I  should  be  sorry  to  say  or  do 
anything  which  might  be  construed  into  disapproval  of  such  methods 
and  proceedings.  It  nevertheless,  appears  affirmatively  that  the 
prisoner  is  detained  by  the  legal  authority  of  the  state  to  answ-er 
certain  alleged  violations  of  the  criminal  laws  in  Xew  Jersey.  The 
case  falls  within  the  provisions  of  section  753  of  the  Revised  Stat- 
utes of  the  United  States,  which  restrict  the  writ  of  habeas  corpus 
to  a  case,  where  a  prisoner  in  jail  is  in  custody  under  or  by  color  of 
the  authority  of  the  United  States,  or  is  committed  for  trial  before 
some  court  thereof :  or  is  in  custody  for  an  act  done  or  omitted 
in  pursuance  of  a  law  of  the  United  States,  or  of  an  order,  process 
or  decree,  of  a  court  or  judge  thereof;  or  is  in  custody  in  violation 
of  the  constitution  or  a  law  or  treaty  of  the  United  States,  *  *  * 
or  unless  it  is  necessary  to  bring  the  prisoner  into  court  to  testify. 

It  appears  in  the  petition,  return  and  evidence  that  the  prisoner 
was  brought  into  the  state  of  Xew  Jersey,  from  the  District  of 
Columbia,  by  persons  claiming  to  act  under  the  constitution  and 
laws  of  the  United  States  in  regard  to  the  extradition  of  fugitives 
from  justice. 

The  second  section  of  article  IV  of  the  constitution  provides 
that  a  person  charged  in  any  state  with  treason,  felony  or  any 
other  crime,  who  shall  flee  from  justice  and  be  found  in  another 
state  shall,  on  demand  of  the  executive  authority  of  the  state 
whence  he  fled,  be  delivered  up  to  be  removed  to  the  state  having 
jurisrliction  of  the  crime. 

The  act  of  Congress  of  Feb.  12.  1793.  (§  5278  of  Rev.  Stat, 
of  U.  S.)  was  passed  to  provide  the  machinery  to  carry  into  effect 
this  provision,  and  it  is  thereby  made  the  duty  of  the  executive 
of  the  state  or  territory,  to  which  the  person  charged  with  crime, 
generally  designated  in  the  constitution,  has  fled  upon  lawful 
demand,  to  cause  the   fugitive  to  be  arrcstod  and  surrendered  up. 


§    3  SCOl'K  OF   THE   REMEDY.  833 

The  alleged  fngitive  in  the  present  case  being  in  the  District  of 
Columbia,  the  demand  was  upon  the  Chief  Justice  of  the  Supreme 
Court,  under  section  843  of  the  Revised  Statutes,  relating  to  the 
District  of  Columbia,  wherein  that  officer  is  directed  to  deliver 
up  fugitives  from  justice  in  the  same  manner  as  the  executive 
authorities  of  the  several  states  are  required  to  do,  under  the  extradi- 
tion act. 

The  demand  of  Governor  McClellan  upon  Chief  Justice  Carter 
was  dated  March  11,  1878,  and  was  based  upon  the  allegation  that 
the  prisoner  stood  charged  with  the  crime  of  perjury,  committed 
in  the  county  of  Essex,  state  of  New  Jersey,  that  he  had  fled  from 
the  justice  of  said  state,  and  had  taken  refuge  within  the  District 
of  Columbia. 

It  is  requested  that  the  petitioner  be  delivered  up  to  Robert 
Lang,  and  Andrew  J.  McManus,  who  were  authorized  to  receive 
him  and  convey  him  to  the  state  of  New  Jersey,  there  to  be 
"dealt  with  according  to  law. 

The  grounds  alleged  in  the  petition  for  the  discharge  of  the 
petitioner  were  that  he  was  a  citizen  of  Connecticut,  residing  at 
New  Haven,  in  said  state ;  and  in  the  latter  part  of  February  last 
he  left  his  home  for  the  purpose  of  attending  to  certain  business 
in  the  city  of  Washington  in  relation  to  the  legislation  pending 
before  the  Congress  of  the  United  Srtates,  and  under  consideration 
by  a  committee  of  the  senate ;  that  he  passed  openly  in  the  daytime 
through  the  state  of  New  Jersey,  took  rooms  at  a  hotel  in  the  city  of 
Washington,  where  he  remained  from  day  to  day  in  the  open 
and  public  pursuit  of  the  business  objects  for  which  his  presence  was 
required  at  the  capitol,  and  attended  from  time  to  time  before 
the  senate  committee,  and  held  conferences  with  different  members 
of  congress,  concerning  business  which  he  had  in  hand ;  that  he 
was  thus  engaged  on  the  nth  day  of  March  last,  and  in  the  evening 
of  that  day  had  retired  to  his  bed  as  usual,  when,  about  midnight, 
lie  was  awakened  and  disturbed  by  the  entrance  of  three  men  into 
his  room,  who  informed  him  that  they  had  authority  to  arrest  him 
and  take  him  to  the  state  of  New  Jersey,  w^hich  they  did.     *     *     ^^^ 

That  the  indictments  which  formed  the  basis  of  such  extradi- 
tion proceedings  do  not  charge  any  crime  under  any  statute  or 
at  common  law.  and  that,  therefore,  the  arrest  in  the  manner  afore- 
said was  illegal,  and  a  violation  of  the  right  of  the  petitioner 
as  a  citizen  of  the  United  States. 

If  the  return  had  been  made  to  the  writ  of  habeas  corpus  in  this 
case,  that  the  warden  annexed  to  the  writ,  issued  for  the  prisoner 
on  his  application  to  the  Supreme  Court  of  the  United  States 
to  be  admitted  to  bail,  towit : — that  he  was  held  in  custody  only  by 
virtue  of  the  commitment  issued  by  the  governor  to  the  keeper  of 
the  jail  of  the  county  of  Essex,  the  sole  question  presented  would  be, 


834  IX    RE    NO  YES.  §    3 

whether  it  was  competent  for  this  court  to  inquire  into  the  suf- 
ficiency of  the  evidence  upon  which  the  governor  of  New  Jersey 
and  the  Chief  Justice  of  the  District  of  Cokimbia  acted,  in  making 
the  requisition  by  the  one  and  the  order  for  the  rendition  by  the 
other. 

But  the  return,  as  amended  set  forth  the  existence  of  new  facts, 
which  had  arisen  since  the  writ  was  allowed. 

It  is  not  only  averred  that  the  prisoner  had  been  delivered  into 
his  custody  by  virtue  of  the  writ  of  commitment  issued  by  Gov- 
ernor McClellan,  of  New  Jersey,  but  also  that  he  was  held  (i) 
by  writs  of  capias  from  the  court  of  oyer  and  terminer  in  and  for 
the  county  of  Essex,  for  the  term  of  April,  1877  and  the  term  of 
April,  1878;  (2)  by  virtue  of  orders  of  said  court  remanding  him 
to  his  custody  for  trial  upon  the  indictments  to  which  he  had  hither- 
to pleaded,  the  tenors  of  which  were  annexed,  and  which  were  the 
cause  of  his  detention. 

The  writ  of  habeas  corpus  was  tested  and  allowed  April  16, 
1878.  It  appears  by  the  copies  of  the  papers  annexed  to  the  return 
that  on  the  19th  day  of  April  the  court  of  oyer  and  terminer  of 
the  county  of  Essex,  caused  the  prisoner  to  be  placed  at  the  bar 
to  be  charged  on  the  indictments  for  perjury,  upon  which  the  requi- 
sition had  been  made,  and,  on  his  plea  of  not  guilty,  the  court  had  re- 
manded him  to  the  custody  of  the  warden,  of  the  jail  for  trial 
upon  the  eighth  of  May,  upon  the  indictments  to  which  he  had 
before  pleaded ;  that  on  the  26th  day  of  April  he  was  again  set 
to  the  bar  of  th^  court,  to  be  charged  upon  another  indictment  for 
conspiracy,  and,  upon  his  plea,  of  not  guilty,  the  court  had  again 
remanded  him  to  the  same  custody  and  control  to  be  held  for 
trial. 

The  traverse  to  the  return  substantially  admits  the  truth  of 
these  allegations,  but  it  seeks  to  break  their  force  by  claiming  that 
if  the  arrest  of  the  petitioner,  by  means  of  which  he  was  brought 
within  the  jurisdiction  of  this  state,  was  unlawful,  he  is  entitled  to 
his  discharge  from  custody,  and  return  to  his  home,  notwithstanding 
he  was  charged  upon  other  indictments  and  has  been  ordered  to  be 
held  for  trial  since  the  service  of  the  writ  of  habeas  corpus. 

We  are  thus  brought  to  the  consideration  of  the  naked  questions  : — 
(i)  Whether  a  fugitive  from  justice  extradited  from  one  state 
of  the  Union  to  another  on  the  charge  of  a  specific  crime  being 
committed,  can  be  held  by  the  courts  of  the  state  to  which  he 
is  sent  for  trial,  for  another  and  different  crime?  And  (2)  whether 
such  persons  may  be  detained  by  the  authorities  of  the  state  for 
prosecution  notwithstanding  it  may  appear  that  his  arrest  under 
the  rendition  proceedings  was  without  legal  authority? 

If  these  inquiries  are  answered  in  the  affirmative;  if  the  state 
court,   without   regard    to   the   lawfulness   or   unlawfulness   of   the 


i;    3  SCOPE  OF   THE  REMEDY.  835 

methods  adopted  to  obtain  the  custody  of  the  body  of  the  prisoner, 
may  detain  him  for  trial  upon  the  same  or  other  indictments 
charging  him  with  offenses  against  the  criminal  laws  of  the  state, 
he  has  no  claim  upon  this  court,  for  his  discharge  on  the  ground 
that  his  rights  as  a  citizen  were  violated  by  the  parties  who  secured 
his  person  in  a  foreign  jurisdiction  other  than  by  due  process  of 
law? 

Questions  were  discussed  in  the  argument  which  may  properly 
arise  between  governments,  as  to  the  construction  of  the  extradi- 
tion treaties  or  between  individuals,  as  to  the  responsibility  for  the 
invasion  of  personal  rights,  but  which,  in  my  judgment,  are  not 
involved  in  the  present  inquir}-. 

It  may  be  true  that  where  a  treaty  exists  between  two  inde- 
pendent nations  in  regard  to  the  surrender  of  fugitives,  or  a  criminal 
is  given  up  on  the  allegation  that  he  had  committed  a  specific  crime, 
good  faith  between  the  governments  requires  that  he  should  not 
be  tried  for  other  offenses. 

It  may  be  true  that  when  a  citizen  is  placed  under  restraint 
without  lawful  cause,  he  can  hold  every  one  who  caused  or  con- 
tributed to  his  imprisonment,  to  a  strict  accountability  in  a  civil 
action.  In  the  one  case  the  right  of  asylum  is  sacred,  except  so 
far  as  it  has  been  yielded  by  the  terms  of  the  international  compact, 
and  any  abuse  or  perversion  by  one  government,  of  the  privileges 
of  arrest  granted  by  the  treaty,  is  a  just  cause  of  complaint  on  the 
part  of  the  other. 

In  the  other  case,  so  jealous  is  the  law  in  regard  to  the  invasion 
of  the  individual  liberty  of  the  citizen,  that  all  unauthorized  re- 
straint of  his  person  is  followed  by  damages  against  the  offending 
party. 

But  here  a  court  of  competent  jurisdiction  has  the  custody  of 
a  person,  who  is  charged  with  the  commission  of  certain  offenses 
against  the  laws  of  the  state.  The  answer  to  the  charge  is  that  some 
other  person  has  done  a  wrong  to  the  prisoner,  by  violating  the 
laws  of  another  state,  in  arresting  him  without  proper  authority. 

In  a  criminal  case,  this  can  hardly  be  reckoned  a  pertinent 
response.  A  person  arraigned  for  the  commission  of  a  felony  cannot 
plead  in  bar,  that  he  ought  to  be  excused  from  answering  the 
charge,  because  other  parties  trespassed  upon  his  personal  rights. 

It  is  a  confounding  of  matters  which  are  essentially  separate 
and  distinct.  It  is  a  claim  on  the  part  of  the  accused,  that  his 
criminal  violations  of  the  law  are  to  be  condoned  by  his  personal 
injuries.  It  is  asking  a  court  to  suspend  its  most  responsible  duties 
to-wit : — ^the  trial  of  offenders  against  the  penal  code  of  the  state, 
while  the  persons  charged  with  the  crime  are  instituting  preliminary 
investigations  into  the  methods  adopted  to  bring  them  within  its 
jurisdiction.     Such  a  course,  for  obvious  reasons,  is  allowable  in  a 


■836  IX  RE  NO^rjib..  ^"  4:1 

civil  suit  between  private  litigants,  bat,  for  like  obxniws"  niaann?,. 
cannot  be  and  never  has  been  allowesr  in  criminal  proceedine;s, 
Avhere  the  object  of  the  prosecution  is  to  punish  an  offesader  against 
the  public.  On  a  claim  of  this  sort  the  court  says  to  tfee.  prisoner : 
"'You  are  going  too  fast.  V.'e  will  consider  one  thing  at  a  time 
and  ever}i:hing  in  its  regular  order.  The  pcecise  matter  wJiich  now 
concerns  you  and  the  court  is,  whether  you  are  guiilty  of  the 
crime  charged  against  you.  As?  you  happen  to  be  found  within  our. 
jurisdiction  we  will  first  settle  that  question,  and  afterwards,. if  need, 
be,  will  inquire  into  the  circumstances  attending  yov:r  rendition 
for  trial,  or  will  leave  the  respective  governments  to  discuss  thejn, 
or  will  remit  you  to  the  recovery  of  such  damages  as  you'may  be 
able  to  obtain  in  the  civil  courts  for  the  violatiion  of  your  rights- of 
person." 

All  the  authorities  of  Great  Britain  and  the  United  States  when 
carefully  considered  and  interpreted  by  their  ciircumstanc.^,.supf)orL 
this  view  of  the  law. 
\,  The  earliest  cases  in  England  to  which  tfie  attention  of  the 
court  has  been  called,  are  Rex  v.  Marks,  3  East  175,  before  the 
King's  Bench  in  1802,  and  Ex  parte  Kraus,  i  Bani.  &;  Gres.  238, 
in  the  same  court  in  1823,  in  bothi  of  whicli  it '  wasr.  held  that 
when  a  party  was  liable  to  be  detained  on  a  criminal  charge;  the 
court  would  not  in([uire  on  habeas  corpus  into  tlie  manr^jar  in 
which  the  capture  had  been  effected. 

The  case  of  Susannah  Scott,  9  Barn.  &  Cres.  446^.  before  thf^ 
King's  Bench  in  1829,  ^vas: — A  rule  nisi  had  been  obtained'  for 
a  habeas  corpus  to  bring  the  body  of  the  prisoner  iu,  the  custody 
of  the  marshal,  in  order  that  she  might  be  discharged,  on  the- 
•o-round  that  she  had   been  improperly  apprehended,  in   a  foreign. 

€Ount^}^ 

It  appeared  on  the  return  that  an  indictmejat  for  perjury  had  been 
found  against  her  in  London  ;  that  a  warrant  for  her  arrest,  to  appear 
and  plead  had  been  granted;  that  the  police  officer  having  the 
warrant  went  beyond  his.  jurisdiction,  and  followed  her  to  Brussels, 
and  there  arrested  her,  conveyed  her  to  Ostend  against  her  will,, 
and  thence  back  to  England,  thief  Justice  Tenterden  on  discharg- 
ing the  rule,  said: — "The  question  is  this,  whether  if  a  person 
charged  with  a  crime  is  found  in  this  country,  it  is  the  duty  of  the 
court  to  take  care  that  the  party  shall  answer  to  justice,  or  whether 
Ave  have  to  consider  the  circumstances  under  which  she  was  brought 
here."  I  thought,  and  still  continue  to  think,  that  we  cannot  in- 
quire into  them. 

The  courts  of  South  Carolina  in  the  same  year  were  considering 
the  same  question,  as  a])pcars  in  the  case  of  the  State  v.  Smith,  re- 
ported in  1  Bailey  283. 

In  the  case  of  the  State  v.  I'.rewster.  7  Vt.  118,  before  the  supreme 


§    3  HABEAS    CORPUS.  837 

court  of  Averment,  in  1835,  an  attempt  had  been  made  in  the 
court  below  to  have  the  proceedings  in  the  indictment  against 
the  defendant  dismissed  on  the  ground  that  he  was  forcibly  and 
against  his  will,  and  without  the  assent  of  the  authorities  of  Canada, 
brought  from  that  province.  The  court  held  that  the  matter  set 
up  could  not  avail  the  prisoner. 

Dow's  case  reported  in  18  Pa.  St.  37,  is  in  many  of  its  features' 
quite  similar  to  the  one  under  consideration,  but  the  illegality 
of  the  capture  could  not  be  set  up  by  the  fugitive. 

The  case  of  the  State  v.  Ross,  21  Iowa  467,  was  cited  also^ 
and  no  reference  was  made  to  the  cases  of  United  States  v.  Cald- 
well, 8  Blatchf.  C.  C.  R.  131,  because  they  had  been  fully  discussed 
in  the  argument,  and  were  not  considered  pertinent  in  the  present 
inquiry. 

TTiey  all  turn  upon  the  construction  of  the  treaty  between  the 
United  States  and  Great  Britain,  in  regard  to  the  extradition  of 
fugitives  from  justice,  and  involve  the  authority  of  the  courts 
to  hold  a  surrendered  fugitive  for  trial  for  any  other  than  extra- 
ditable offenses.  It  may,  however,  be  remarked,  in  reference  to 
this  question,  that  the  second  clause  of  the  Vlth  article  of  the 
Constitution  of  the  United  States,  treaties  are  declared  to  be  the 
supreme  law  of  the  land,  and  by  the  second  section  of  the  third 
article  they  are  brought  as  directly  within  the  judicial  powder  as 
cases  in  law  and  equity,  arising  under  the  constitution  and  laws  of 
the  United  States ;  unless  therefore,  there  was  something  in  the 
treaty  with  Great  Britian  which  required  the  aid  of  legislative 
provisions  to  give  it  effect  (see  2  Pet.  353),  it  is  somewhat  diffi- 
cult to  understand  or  to  indorse  the  reasoning  of  the  learned  judge 
who  decided  the  case  of  Caldwell  v.  Lawrence,  and  especially  where 
he  asserts  that  complaints  of  the  abuses  of  the  extradition  proceed- 
ings do  not  form  a  proper  subject  of  investigation  in  the  courts 
of  the  United  States. 

It  is  the  conclusion  of  the  court  upon  principle  and  authority 
that  the  state  court  has  the  right  to  hold  the  prisoner  for  trial 
for  the  offense  charged  against  him  without  reference  to  the  cir- 
cumstances under  which  his  arrest  w^as  made  in  a  foreign  jurisdic- 
tion. 

It  necessarily  follows  that  there  is  no  authority  here  to  dis- 
charge him  on  the  habeas  corpus.  Neither  the  constituiton  of  the 
United  vStates  nor  the  753d  section  of  the  Revised  Statutes  makes 
any  provision  for  the  writ  in  such  a  case,  and  the  prisoner  must  be 
remanded. 

In   accord. — State   v.    Patterson,    it6  Mo.   505;   Lascelles   v.    State,  90  Ga. 

347,  affirmed  in  Lascelles  v.  Georgia,  148  U.  S.  537;   Ham  v.  State,  4  Tex. 

App.  645;  State  V.  Stewart,  60  Wis.  587;  Harland  v.  Territory,  3  Strewe 
(Wash.  Ter.),  131. 


838  THE    PETITIONER.  §    4 

Contra,  Daniel's  case,  Binn's  Jus.  (9th  ed.)  495;  Cannon,  Matter  of,  47 
Mich.  481;  LaGrave"s  Case,  14  Abb.  Pr.  N.  S.  (N.  Y.)  333,  343;  State  v. 
Hall,  40  Kans.  338.  See  especially  McKnight,  Ex  parte,  48  Oh.  St.  588, 
where  the  court  speaking  through  Williams,  C.  J.,  holds  that  no  difference 
exists    in    principle    between    interstate    and    international    extradition. 

In  affirming  the  right  to  try  a  prisoner  on  an  offense  other  than  that 
charged  in  the  requisition  in  cases  of  interstate  rendition  and  denying  such 
right  in  cases  of  international  extradition.  Prof.  Moore,  in  his  masterly 
work  on  Extradition,  Vol.  II,  p.  1042,  in  commenting  on  the  cases  of  Kerr 
V.  Illinois,  119  U.  S.  436,  and  United  States  v.  Rauscher,  119  U.  S.  407, 
says :  "  *  *  *  It  was  not  because  the  court  conceived  it  to  be  an  in- 
trinsically immoral  thing  to  try  the  fugitive  for  an  offense  other  than 
that  for  which  he  was  delivered  up,  that  it  was  held  that  he  could  not  be 
so  tried ;  for,  after  having  obtained  the  surrender  of  a  fugitive  in  the  reg- 
ular and  legal  way,  the  authorities,  apprehensive,  lest  the  extradition  charge 
might  not  be  sustained  on  the  trial,  might,  there  being  no  agreement  to 
the  contrary,  with  the  utmost  good  faith  and  in  response  to  the  most  urgent 
demands  of  justice,  seek  to  convict  the  prisoner  on  another  charge.  It 
was  because  the  treaty,  the  law  of  the  land,  was  held  to  forbid  such  trial, 
that  the  court  refused  to  permit  it.  But.  it  may  be  asked,  why  was  it 
that  the  court  decided  that  the  treaty  inhibited  the  trial,  if  it  did  not  ex- 
pressly torbid  it?  To  answer  this  question  is  to  explain  the  fundamental 
difference  between  extradition  and  interstate  rendition.  The  decision 
rested  upon  the  following  grounds :  The  court  held  that  in  strict  law  every 
independent  nation  has  the  right  to  afford  asylum  for  fugitive  offenders 
and  to  refuse  to  deliver  them  up.  This  right  it  must  be  supposed  to  main- 
tain except  in  so  far  as  it  sees  fit  to  forego  it.  This  it  may  do  either 
in  the  exercise  of  comity,  or  by  placing  itself  under  the  obligation  of 
treaty.  But,  in  whichever  way,  it  may  be  secured,  the  particular  con- 
cession is  not  held  to  have  the  effect  of  a  general  abandonment  of  the 
right.  Hence,  if  a  nation  agrees  by  treaty  to  extradite  fugitives  for  cer- 
tain offenses,  it  abridges  its  asylum  only  in  respect  to  those  offenses ;  and, 
if  under  its  obligation  to  surrender,  it  delivers  a  fugitive  up,  it  deprives 
him  of  asylum  only  as  to  the  offense  for  which  it  is  shown  that  his  extra- 
dition is  due,  and  surrenders  him  to  be  tried  for  that  offense  and  for  no  other. 
As  to  other  offenses,  he  is  to  be  considered  as  being  still  within  the  state  from 
which  he  was  taken,  and  as  being  entitled  to  an  opportunity  to  return  to  that 
state  before  being  tried  for  such  an  offense.  There  is  also  yet  another  reason 
for  this  rule.  Whatever  views  may  be  entertained  as  to  the  right  to  try 
for  another  than  the  extradition  offense,  where  the  treaty  is  silent  on  the 
subject,  it  is  univcr.sally  admitted  that  no  nation  is  bound  to  deliver  up 
fugitives  where  their  offenses,  by  whatever  name  they  may  be  called,  are 
shown  to  be  political;  and  it  would  be  an  infraction  of  international  law 
to  obtain  the  surrender  of  a  fugitive  for  a  common  crime  and  then  try 
him  for  a  political  offense.  The  opportunity  which  the  absence  of  any 
restriction  even  as  to  common  crimes  wtnild  atTord  for  political  prosecutions, 
has  been  a  persuasive  argument  in  leading  the  courts  to  find  in  the  treaties 
which  contain  no  express  limitation  on  the  subject,  an  implied  inhibition 
of  trial  for  any  other  than  the  extradition  offense.     *     *     *     " 


Section  4. — "The  Parties." 

I.      The   petitioner. 

In  tlie  very  nature  of  the  writ,  the  person  in  custody  is  imder  all 
circumstances  the  proper  party  to  petition   for  the  writ,  unless,  of 


§    4  '^"iiE    PARTIES.  839 

course,  the  nature  of  the  restraint  to  which  he  is  subjected  is 
such  as  to  render  it  impossible  for  him  to  make  the  appUcation. 
The  benefits  of  the  writ  extend  not  only  to  citizens  but  to  aliens 
as  well,  i.  e.,  alien  friends.  The  above  statement  is  as  applicable 
to  custody  on  civil  process  as  it  is  to  that  on  criminal  process,  or  no 
process  at  all. 

TERRITORY  OF  KANSAS  ex  rel.  GOSS  v.  CUTLER. 

i860.     Supreme  Court  of  the  Territory  of  Kansas,     i   Kan. 

565,  supra  p.  708. 


THE  CASE  OF  THE  HOTTENTOT  VENUS. 
1810.     Court  of  King's  Bench.     13  East  195. 

A  female  native  of  South  Africa,  remarkable  for  the  formation 
of  her  person,  was  exhibited  in  London  in  the  course  of  the 
autumn  of  this  year  under  the  name  of  the  "Hottentot  Venus" 
(her  real  name  being  Saartje  Baartman)  by  certain  persons  who  had 
the  apparent  custody  of  her,  and  who  received  money  for  such  ex- 
hibition. The  decency  of  the  exhibition  was  not  called  in  question ; 
it  appearing  that  the  woman  had  proper  clothing  adapted  to  the 
occasion ;  but  from  some  expressions  which  had  been  uttered  by 
those  who  had  brought  her  over  to  this  country,  and  with  whom 
she  continued,  and  some  apparent  indications  of  reluctance  on  her 
part  during  her  exhibition,  there  was  reason  to  believe  and  affidavits 
were  accordingly  laid  before  the  court  to  that  effect,  by  the  secre- 
tary of  a  society  denominated  the  African  Institution,  that  she 
had  been  clandestinely  inveigled  from  the  Cape  of  Good  Hope, 
without  the  knowledge  of  the  British  governor  (who  extends  his 
peculiar  protection  in  nature  of  a  guard'an  over  the  Hottentot  na- 
tion under  his  government,  by  reason  of  their  general  imbecile 
state;)  and  that  she  was  brought  to  this  country  and  since  kept 
in  custody  and  exhibited  here  against  her  consent.  Whereupon  the 
court,  on  the  motion  of  Mr.  Attorney  General  granted  the  following 
rule : — 

England. — Upon  reading  the  several  affidavits  of  Zachary  Mac- 
cauley  and  others,  and  William  Bullock,  it  is  ordered  that  Tues- 
day next  be  given  to  Alexander  Dunlop  and  Henrick  Caesar,  to 
show  cause  why  a  writ  of  habeas  corpus  should  not  issue  directed  to 
them,  commanding  them  to  have  the  body  of  a  certain  native  of 
South  Africa,  denominating  the  Hottentot  Venus,  before  this  court 
immediately,  to  undergo,  etc.    Upon  notice  of  this  rule  to  be  given  to 


840  THE  CASE  OF  THE  HOTTEN'iWT  VENUS.  §    4 

them  in  the  meantime.  And  it  is  further  ordered,  that  one  or  two 
such  person  or  persons  as  shall  be  approved  for  that  purpose  by  the 
coroner  and  attorney,  of  this  court  shall,  at  such  times  as  shall  be 
appointed  by  the  coroner  and  attorney,  have  free  access  to  the  said 
native  of  South  Africa  at  the  house  of  the  said  Alexander  Dunlop 
aiid  Henrick  Caesar,  in  York  Street,  Piccadilly,  in  the  absence  of 
said  Alexander  Dunlop  and  Henrick  Caesar,  but  in  the  presence  of 
one  or  two  such  person  or  persons  as  shall  be  denominated  by 
them,  and  to  be  approved  of  by  the  said  coroner  and  attorney  for 
the  purpose  of  conversing  with  her. 

Such  examination  took  place  accordingly  before  the  coroner  and 
attorney  of  this  court,  who  made  his  report  thereof ;  from  whence 
it  satisfactorily  appeared  to  the  court  that  the  woman  came  over 
here  and  was  exhibited,  b}'  her  owm  consent,  upr-n  a  contract  to 
receive  a  certain  proportion  of  the  profits  arising  from  the  exhibi- 
tion of  herself ;  and  this  being  confirmed  by  affidavits  made  by 
those  who  had  the  care  of  her ;  the  court,  whose  authority  as  guard- 
ian of  the  personal  liberty  of  the  subject  was  alone  called  into 
action  on  this  occasion,  finally  discharged  the  rule. 

Third  person  petitioning  in  the  behalf  of  the  prisoner:  McCullough,  Ex 
parte,  35  Ca!.  97;  People  v.  Willett,  15  How.  Pr.  (N.  Y.)  210;  Williamson 
V.  Lewis,  39  Pa.  St.  9;  Cobbett  v.  Hudson,  15  Q.  B.  988;  Parker,  In  re, 
5  IM.  &  W.  31 ;  Ross,  In  re,  3  P.  R.  (Can.)  301;  Broomhead  v.  Chisolm, 
47  Ga.  390;  Commonwealth  v.  Curby,  3  Brewst.  (Pa.)  610;  Armstrong 
V.  Stone,  9  Grat.  (Va.)  102;  United  States  v.  Williamson,  28  Fed.  Cas. 
686;  Carmichael,  In  re,  i  U.  C.  L.  J.  n.  s.  243;  Ferrens,  In  re,  3  Ben.  (U. 
S.)   442;   Simmons  v.  Georgia,  etc.,  Co.,   117  Ga.  305. 

The  writ  may  be  granted  at  the  petition  of: 

Parent  for  his  child:  People  v.  Mercein,  3  Hill  (N.  Y.)  399;  Pearson, 
In  re,  4  Moore,  366;  Rex  v.  Lister,  i  Strange,  478. 

Master  for  Jiis  aiipiLiilice:  People  v.  Pillow,  i  Sandf.  (N.  Y.)  672; 
Commonwealth  v.   Peck,   i   Browne    (Pa.),  277. 

Guardian  for  his  ward:  Hyde  v.  Jenkins,  6  La.  435;  Commonwealth  v. 
Hammond,  27  Mass.  274;  Hovev  v.  Morris,  7  Black   (Ind.)  559. 

Wife  for  her  husband:  Cobbett  v.  Hudson,  15  Q.  B.  988. 


Ex  PARTE  CHILD. 
1R54.     The  Court  of  Common  Pue.'vs.      15  Common  Bench  237, 

P>vi-F.s,  Scrjt.,  on  a  former  day  in  this  term,  obtained  a  rule  calling 
upon  Francis  James  Lord  to  show  cause  why  a  writ  of  habeas  corpus 
shonUl  not  issue,  to  compel  him  to  bring  up  the  body  of  Captain 
Child,  who  was  rlctained  in  a  lunatic  asylimi  in  Hayes  Park  Mid- 
dlesex, kept  bv  Lord. 


§    4  iHE    PARTIES.  841 

The  affidavits  upon  which  the  motion  was  founded,  were  those  of 
one  Mead,  w^ho  described  himself  as  the  attorney  for  Captain  Child, 
and  who  stated  that  the  only  certificates  ui.Jer  which  Captain 
Child  was  detained,  where  those  of  two  medical  practitioners  in 
Dublin ;  and  of  Dr.  !luchanan  and  Dr.  Barnes,  who  deposed  as 
to  the  };resent  state  of  mind  of  Captain  Child. 

The  learned  Serjeant  submitted  that  an  Irish  certificate  does 
not  justify  the  detention  of  a  party  as  a  lunatic  in  this  country, 
— referring  to  the  statute  8  &  9  Vict.  c.  100  ss.  45,  46,  47,  117, 
and  to  the  case  of  In  re  Shuttleworth,  o  Q.  B,  651  (E.  C.  L.  R. 
Vol.  58.) 

Montague  Smith,  who  appeared  to  show  cause,  objected  that 
there  was  no  affidavit  showing  that  the  application  was  made  with 
the  sanction  of  Captain  Child,  or  that  Mead  had  any  authority  to 
appear  and  act  as  his  attorney.  He  referred  to  hi  re  Parker. — the 
Canadian  Prisoner's  case,  5  M.  &  W.  32,  where  the  Court  of 
Exchequer  said: — "Before  granting  a  habeas  corpus  to  remove  a 
person  in  custody,  we  are  to  ascertain  that  an  affidavit  is  not 
reasonably  to  be  expected  from  him.  An  affidavit  is  absolutely 
necessarv,  either  from  the  party  who  claims  the  writ,  or  from 
some  other  person,  so  as  to  satisfy  the  court  that  he  is  so  coerced 
as  to  be  unable  to  make  it. 

Byles,  Serjt.,  admitted  that  his  affidavit  did  not  sufficiently 
show  that  the  application  was  authorized  by  Captain  Child. 

Jervis,  C.  J. — I  think  my  Brother  Byles  has  not  put  himself  in 
a  condition  to  ask  for  the  writ.  A  mere  stranger  has  no  right  to 
come  to  the  court  and  ask  that  a  party  who  makes  no  affidavit, 
and  who  is  not  suggested  to  be  so  coerced  as  to  be  incapable  of 
making  one,  may  be  brought  up  by  habeas  corpus  to  be  discharged 
from  restraint.  For  anything  that  appears.  Captain  Child  may  be 
very  well  content,  to  remain  where  he  is.  The  rule  must  be 
discharged ;  and,  as  Mr.  Lord  has  been  put  to  the  expense  of  coming 
here  unnecessarily  and  fruitlessly,  it  must  be  with  costs. 

The  rest  of  the  court  concurring,   Rule  discharged  with   costs. 

Smith  asked  that  the  costs  of  the  rule  might  be  ordered  to  be 
paid  by  the  attorney. 

Sed  per  curiam.     We  cannot  do  that. 


COMMONWEALTH  v.  R:DGWAY. 

1839.     Court  of  Common  Pleas  of  Philadelphia  Co.,  Pa.     2 

Ashmead  247. 

(So  MUCH  of  the  opinion  as  relates  to  the  question  of  probable 
conspiracy,  shown  by  the  evidence  against  the  relator  is  omitted.) 


842  COMMONWEALTH   V.  RIDGWAY.  §    4 

The  defendant  had  been  bound  over  by  the  mayor  of  the  city 
of  Philadelphia,  to  answer  the  charge  of  a  "conspiracy  with  Dr. 
Dyott,  to  defraud  the  community ;  and  refusing-  to  give  bail  to  the 
mayor,  was  committed  to  the  custody  of  Willis  H.  Blaney,  one  of 
the  high  constables,  and  immediately  sued  out  the  writ  of  habeas 
corpus;  the  testimony  on  the  part  of  the  commonwealth  was  pro- 
duced, and  the  case  fully  argued  on  both  sides  by  counsel ;  and  on 
Saturday,  Aug.  3,  1839,  the  defendant  was  discharged,  the  judges 
giving  their  opinions  seriatim. 

Randall,  Justice.— The  writ  of  habeas  corpus  in  this  case,  was 
directed  to  Willis  H.  Blaney,  one  of  the  high  constables  of  the  city 
of  Philadelphia,  who  returned,  that  he  had  the  relator  in  custody 
bv  virtue  of  a  commitment,  signed  by  the  mayor,  charging  him 
with  "a  conspiracy,  with  Thomas  W.  Dyott,  to  defraud  the  com- 
mimity." 

A  preliminary  exception  was  made  by  the  counsel  for  the  com- 
monwealth, to  the  regularity  or  the  propriety  of  the  writ  in  the 
first  instance,  which,  if  well  founded,  will  prevent  the  necessity 
of  any  further  examination  of  the  cause,  and  place  the  relator  in 
the  same  situation  he  was  at  the  time  the  writ  was  issued. 

It  is  said  that  because  the  defendant  was  not  actually  in  prison, 
he  being  able  to  give  the  security  required,  (his  own  recognizance 
only  having  been  demanded  by  the  mayor),  his  case  is  not  within  the 
letter  or  the  spirit  of  the  habeas  corpus  act.  It  is  admitted  that 
in  cases  where  the  committing  magistrate  has  no  authority  to  take 
bail,  a  habeas  corpus  may  issue  to  the  constable  or  other  oflficer 
having  the  defendant  in  charge ;  but,  a  distinction  is  endeavored  to 
be  drawn  between  such  a  case  and  one  in  which  the  magistrate 
may  take  bail  and  the  party  be  able  to  procure  it.  I  am  unable  to 
perceive  any  such  distinction ;  on  the  contrary,  I  think  the  case 
within  the  letter  and  the  spirit  of  the  act. 

The  object  of  the  habeas  corpus  act  was  to  prevent  any  wrongful 
or  illegal  restraint  of  personal  liberty ;  aud  whenever  a  person  is 
deprived  of  the  privilege  of  going  zvhoi  and  where  he  pleases, 
he  is  restrained  of  his  liberty  and  has  a  right  to  inquire  if  that 
restraint  be  illegal  and  wrongful:  zvhether  if  it  be  by  a  jailer,  con- 
stable or  private  individual.  It  is  not  necessary  that  the  degrada- 
tion of  being  incarcerated  in  prison,  should  be  undergone,  to  entitle 
any  citizen  who  may  consider  himself  unjustly  charged  with  a 
breach  of  the  laws,  to  a  hearing.  The  vv'hole  spirit  of  the  law  is 
in  favor  of  liberty;  and  if  tbc  words  v.ore  doulDtful,  it  should  be 
construed  liberally  in  favf)r  of  tlial  blessing.  I'ut,  the  case  is  also 
within  the  strict  "letter  of  the  law.  The  act  declares.  "Tf  any  per- 
son shall  be  or  stand  committed  or  detained  for  any  criminal  or 
supposed  criminal  matter,  unless  for  treason  or  felony,"  &c.,  he 
shall  (in  vacation)  apply  to  a  judge,  who  is  required  to  award 
and  grant  a  writ  of  habeas  corpus,  to  be  "directed  to  the  person, 


§    4  'i"HE    PARTIES.  843 

or  persons  in  whose  custody  the  prisoner  is  detained ;"  and  the 
"officer,  sheriff,  jailer,  keeper  or  other  person  whatsoever,  to  whom 
the  same  shall  he  directed,"  is  required  to  bring  the  prisoner  before 
the  judge  who  awards  the  writ.  This  snd  some  other  portions  of 
our  habeas  cot-pus  act,  have  been  copied  from  the  British  statutes 
of  '31,  sec.  2,  ch.  2;  under  which  it  has  been  expressly  decided, 
that  a  constable  is  within  that  provision  of  it  which  imposes  a 
penalty  for  refusing  a  copy  of  the  commitment,  i  Strange,  136. 
And,  in  one  of  the  cases,  cited  in  another  part  of  this  examination 
by  the  counsel  for  the  commonwealth,  on  a  charge  similar  to  the 
present  (conspiracy),  the  habeas  eorpus  w^as  issued  by  the  chief 
justice,  who  made  the  return.     *     *     * 


NICHOLS  V.  CORNELIUS. 
1856.     Supreme    Court   of    Indiana.     7    Ind.   611. 

GooKiNS,  J. — Pamelia  Cornelius,  presented  a  petition  to  the  judge 
of  the  common  pleas  of  Decatur  county,  stating  that  she  was  illegally 
imprisoned  by  James  T.  Nichols,  under  pretense  of  a  warrant  from 
the  governor  of  this  state,  and  praying  for  a  writ  of  habeas  corpus, 
which  was  granted.  Nichols  returned  to  the  writ  that  he  held  the 
petitioner  in  custody  by  virtue  of  a  writ  issued  by  the  governor 
of  this  state,  upon  a  requisition  of  the  governor  of  the  state  of 
Kentucky,  for  the  petitioner,  as  a  fugitive  from  justice,  and  of  an 
appointment  of  himself  as  an  agent  of  the  state  of  Kentucky, 
to  demand  and  return  said  fugitive,  pursuant  to  such  requisition. 
The  petitioner  excepted  to  the  return,  the  judge  sustained  the  ex- 
ceptions, and  ordered  her  to  be  discharged ;  from  which  order 
Nichols  appeals  to  this  court.     *     *     * 

A  further  position  assumed  is,  that  the  appellant  is  not  within 
the  terms  of  the  statute ;  that  he  is  but  a  nominal  party,  being  an 
agent  only  of  the  state  of  Kentucky,  which  if  any  one  is  the  real 
party.  Why,  then,  did  not  the  petitioner  make  the  proper  party? 
She  has  chosen  to  proceed  against  Nichols  for  the  unlawful  de- 
tention. It  is  of  little  consequence  who  are  made  parties  in  cases 
of  this  kind.  It  is  incumbent  on  the  petitioner  to  show  an  unlawful 
detention  by  some  one,  and  an  officer  claiming  the  right  to  imprison 
by  virtue  of  process,  is  properly  a  party  for  the  purpose  of  testing 
the  legality  of  the  commitment.  In  this  state,  the  state  has  generally 
been  made  defendant,  w^here  the  arrest  has  been  made  to  answer 
to  a  criminal  charge.  We  are  not  disposed  to  hold  that  the  action 
of  the  court  below  in  every  such  case  is  final.    Of  the  impropriety  of 


844  STATE    EX    REL.    DUSTIN    V.    ENSIGN,  §    5 

doing  so,  the  proceedings  m  this  case  furnish  a  sufficient  example. 

^  ^  ^ 

(So  much  of  the  opinion  as  relates  to  the  merits  of  the  case  is 
omitted.) 


Section  5. —  Pleading,  Practice  and  Procedure. 

I.     The  petition  for  the  writ. 

.STATE  EX  REL.  DUSTIN  v.  ENSIGN. 
1882.     Supreme  Court  of  Nebraska.     13  Neb.  250;  13  N.  W.  216. 

Maxwell,  J. — On  the  twenty-seventh  day  of  May,  1882,  the 
relator  filed  a  petition  in  the  county  court  of  Lancaster  county 
alleging  that  he  was  illegally  restrained  of  his  liberty  by  the  de- 
fendant. The  court  thereupon  issued  a  writ  of  habeas  corpus,  to 
which  the  defendant  made  return  that  he  held  the  relator  by  virtue 
of  a  uiittimus  issued  by  the  county  judge  of  Webster  county,  in 
which  mittiuins  it  was  stated  that  said  Dustin  had  been  examined 
by  said  judge  on  the  charge  of  horse  stealing  in  said  Webster  county, 
and  that  said  judge  found  that  there  was  probable  cause  for 
holding  said  John  Dustin  to  answer  to  said  charge,  at  the  next 
term  of  the  district  court,  etc.  The  court  held  that  it  had  no  author- 
ity to  review  the  case,  and  remanded  the  prisoner.  The  case  was 
taken  on  error  to  the  district  court,  where  the  judgment  of  the 
county  court  was  affirmed.  The  case  is  brought  into  this  court  on 
petition  in  error.  There  is  no  copy  of  the  petition  for  a  writ  of 
habeas  corpus  which  was  presented  to  the  county  judge.  Whether 
this  omission  is  intentional  or  not,  does  not  appear;  nor  was  any 
copy  of  the  petition  taken  into  the  district  court.  There  is,  there- 
fore, nothing  before  the  court  upon  which  it  can  act.  The  petition- 
must  set  forth  the  facts  constituting  the  illegal  detention.  It  is 
not  sufficient  to  state  that  the  petitioner  is  restrained  of  his  liberty, 
as  that  is  a  conclusion,  but  it  must  be  made  to  appear  in  what  the 
illegal  restraint  exists.  Ex  parte  Nye,  8  Kan.  99.  And  where  a 
petition  is  presented  for  alleged  want  of  probable  cause,  it  should 
set  forth  all  the  testimony  taken  before  the  examining  magistrate. 
In  re  .Snyder,  17  Kan.  5^^;  /;;  re  I'alcolm  12  Neb.  316;  (s.  c.  ii 
M.  W.  312). 

The  question  whether  or  not  evidence  should  have  been  received 
by  the  county  judge  cannot  be  determined  without  a  statement 
of  the  fact  as  to  the  cause  of  the  illeg;il  detention. 

There  is  no  error  in  the  record  and  the  judgment  is  affirmed. 


§    5  PLEADING.  PRACTICE  AND  PRUCblDLRl::.  845 

STATE  EX  REL.  WALKER  v.  DOBSON. 
1896.     SuPREMi:  Court  of  Missouri.     135  Mo.   i ;  supra  p.  714. 


Ex  PARTE  WALPOLE. 

1890.     Supreme  Court  of  California.     84  Cal.  584:  24  Pac.  308. 

Per  Cni'iain. — Petition  for  writ  of  habeas  corpus  on  the  ground 
that  the  petitioner  had  been  held  to  answer  on  a  criminal  charge 
before  the  superior  court  without  reasonable  or  probable  cause. 
The  petition  does  not  show  what  the  charge  is  upon  which  he  has 
been  committed, vbut  does  allege  that  there  is  no  evidence  whatsoever 
taken  upon  his  preliminary  examination,  showing,  or  tending  to 
show,  that  he  is  guilty  of  any  offense  whatsoever.  l^>ut  this  is  merely 
his  conclusion,  and  it  may  be  an  erroneous  conclusion.  A  petition 
for  habeas  corpus  must  be  verified,  and  must  allege  facts  showing 
an  illegal  imprisonment.  When  the  ground  of  the  petition  is  that 
the  prisoner  has  been  committed  without  reasonable  or  probable 
cause,  it  must  set  out  what  the  evidence  on  the  examination  was  in 
such  form  that  perjury  may  be  assigned  upon  the  allegations,  if  they 
are  false.    Writ  denied. 


STATE  v.  PHILPOT. 
183 1.     Superior  Court  of  Georgia.     Dudley  46. 

A  motion  for  Philpot's  discharge  was  made,  argued  and  over- 
ruled at  a  former  term  upon  a  state  of  facts  precisely  such  as  now 
exist.  The  court  is  again  moved  in  this  matter  upon  grounds  not 
then  assumed,  and  is  prayed  to  reconsider  its  decision  then  pro- 
nounced. Advisement  has  been  had  upon  every  question  raised 
by  the  counsel  for  the  movant,  and  the  whole  case  attentively  con- 
sidered, and  the  decision  of  the  court  will  now  be  pronounced 
upon  each  distinct  ground  on  which  counsel  have  rested  the  motion. 

It  is  contended  that  the  writ  of  habeas  corpus  for  the  disobedience 
of  which  Philpot  has  been  attached,  is  illegal  and  void,  and  that  the 
writ,  and  every  proceed'^ig  imder  it  shouU'l  be  set  aside  by  the  court. 
Two  causes  have  been  assigned  against  the  legality  of  the  writ,  and 
these  form  the  first  and  second  grounds  in  the  motion. 

The  first  cause  is  irregularitv.  The  first  ground  in  the  written 
motion  submitted  is  "Because  the  habeas  corpus  by  virtue  of  which 


846  STATE  V.    PHILPOT.  §    5 

the  said  John  N.  Philpot  was  brought  before  the  court,  issued 
illeg-ally  in  this,,  that  it  issued  without  an  affidavit  to  support  it;" 
though  other  matters  besides  the  want  of  an  affidavit  were  insisted 
on  in  the  argument.  The  particulars  are  three,  in  which  the  irreg- 
ularity is  said  to  consist,  ist.  The  petition  is  not  by  the  guardian  of 
the  bov,  James.  2d.  The  boy's  name  is  not  mentioned  in  the  writ. 
3d.  Want  of  an  affidavit.  The  first  of  these  is  no  irregularity. 
It  is  not  necessary  there  should  exist  any  particular  legal  relation 
between  the  petitioner  and  the  person  for  ivhose  benefit  the  writ 
is  azvarded.  The  person  imprisoned  or  illegally  detained,  may 
himself  petition  or  complain,  or  any  other  person  may  do  it  for 
him.  Nor  is  the  omission  of  the  boy's  name  an  irregularity.  It 
can  be  considered  but  as  a  vagueness  or  uncertainty  in  the  writ, 
which  cannot  affect  its  validity,  if  enough  appear  to  indicate  the 
person  intended.  But  if  it  be  an  irregularity,  we  shall  see  whether 
it  have  not  been  waved.  An  irregularity  is  the  non-conformity 
to  some  settled  rule  of  proceeding,  by  either  omitting  to  do  some- 
thing that  is  necessary,  or  doing  it  at  an  unseasonable  time  or  in 
an  improper  manner.  If  the  verification  of  the  facts  contained  in 
the  petition  for  habeas  corpus  be  something  necessary  to  the  at- 
tainment of  the  writ,  then  its  omission  is  an  irregularity. 

The  writ  before  the  court  is  a  habeas  corpus  ad  subjiciendum  ; 
at  common  law,  and  nearly  a  century  ago  the  judges  of  England 
gave  it  as  their  unanimous  opinion  that  such  a  writ  ought  not 
to  issue  of  course,  but  upon  probable  cause  supported  by  affidavit, 
which  has  been  the  regular  practice  since.  But  though  the  writ 
ought  not  to  issue  regularly  without  an  affidavit,  is  the  affidavit, 
therefore,  an  essential  part  of  the  writ?  The  case  of  the  Lady 
Leigh,  cited  in  3  Bac.  Abr.  5,  shows  that  it  is  not.  In  that  case, 
no  fact  was  sworn  to,  but  that  the  Lady  Leigh  had  complained 
in  a  letter  to  her  mother,  yet  the  court  declared  the  writ  should 
go  to  enable  her  to  make  oath  to  the  matter  complained  of,  and 
exhibited  articles  against  her  husband  ;  and  further,  that  the  Lord 
Leigh,  though  a  Peer,  should  be  attached  if  he  refused  obedience 
to  the  writ.  However,  though  the  affidavit  be  not  of  the  essence 
of  the  writ,  it  will  never  be  dispensed  with,  except  in  cases  of 
great  emergency,  and  the  omission  will  be  adjudged  an  irregularity. 
We  will  consider  how  far  this  irregularity  affects  the  present  case. 

In  Tidd's  Practice,  435,  the  rule  of  law  on  this  subject  is 
stated  to  be  "That  whenever  proceedings  are  irregular,  the  court 
on  motion  will  set  them  aside,  provided  the  application  for  that  pur- 
pose be  made  in  the  first  instance;  for  in  all  cases  of  irregularity, 
the  parties  should  apply  to  the  court  as  early  as  possible ;  and  if  he 
either  proceed  himself  after  discovering  the  irregularity,  or  lie  by 
and  suffer  the  other  party  to  proceed,  the  court  will  not  assist  him." 
'i'he  language  of  the  court  in  the  case  of  Pearson  v.  Rawlings,   t 


§  5  PLEADING,  PRACTICE  AND  PROCEDURE.  847 

East  J",  is  clear  and  ver>'  strong.  "It  is  the  universal  practice  of 
the  court  that  where  there  has  been  an  irregularity,  if  the  party 
overlook  it  and  take  subsequent  steps  in  the  cause,  he  cannot 
afterwards  revert  back  to  the  irregularity  and  object  to  it.  Justice 
requires  that  the  rule  should  be  general  in  its  operation,  having  in 
view  the  advancement  of  right.  And  however  we  may  be  inclined 
to  favor  persons  in  the  situation  of  the  defendant,  yet  we  must  not 
go  to  the  length  of  breaking  in  upon  the  general  practice  of  the 
court."  The  same  doctrine  is  held  in  the  case  of  D'Argent  v. 
Vivant,  i  East  330.  "A  defendant  may  waive  irregularity,  and  is 
considered  as  having  done  so  by  submitting  to  the  process,  instead 
of  taking  *teps  to  avail  himself  of  the  irregularity,  which  ought 
always  to  be  done  in  the  first  instance."  See  also  Fox  v.  Money, 
I  B.  &  P.  250.  Davis  V.  Owen,  id.  342,  This  rule  is  applicable 
however,  only  to  cases  of  irregularity.  It  is  different  where  there 
is  a  complete  defect  in  the  proceedings.  The  former  may  be 
waived  but  not  the  latter.  Goodwin  v.  Perry,  4  T.  R.  577.  Hus- 
sey  v.  Wilson,  5  T.  R.  254.  Stevenson  v.  Danvers,  2  B.  &  P. 
no. 

The  distinction  is  then  plainly  this,  that  where  that  is  wanting, 
without  which  the  whole  proceedings  are  void,  no  subsequent  steps 
will  cure  the  defects.  It  is  radical.  But  if  that  be  wanting  which 
will  merely  render  the  proceedings  voidable,  it  may  be  waived 
by  subsequent  steps.  The  case  of  the  Lady  Leigh,  before  referred 
to,  proves  that  the  verification  of  the  facts  contained  in  the  petition, 
forms  no  part  of  the  process  of  habeas  corpus;  for  in  her  case, 
the  writ  was  ordered  to  go  as  well  that  she  might  have  an  opportu- 
nity of  swearing  to  the  facts  as  of  exhibiting  articles  against  her 
husband.  The  affidavit  is  not  as  in  bail  cases,  a  part  of  the  process, 
but  is  only  a  preliminary  measure  in  attainment  of  the  process, 
Avhich  is  the  writ  oi  habeas  corpus  itself,  and  serves  no  other  purpose 
than  to  convince  the  mind  of  the  judge  that  the  writ  should  issue, 
and  to  prevent  its  being  abused  and  made  the  instrument  of  vex- 
ation. What  particular  showing  was  made  to  the  justice  who 
issued  this  writ,  beyond  that  contained  in  the  petition,  does  not  ap- 
pear; no  affidavit  is  annexed.  He,  however,  exercising  the  power 
vested  in  him  by  law,  awarded  the  writ,  and  much  proceed- 
ing has  been  had  upon  it,  yet  the  petitioner  has  not  yet  sworn 
to  the  facts  in  the  petition.  Let  us  look  to  these  proceedings 
or  subsequent  steps,  and  see  if  enough  has  not  been  disclosed  by 
Philpot  himself  to  convince  the  court  of  the  propriety  and  even 
necessity  of  issuing  the  writ  in  the  first  instance,  and  to  amount 
to  a  waiver  of  any  irregularity. 

The  first  step  taken  by  Philpot  is  his  appearance  in  obedience 
to  the  writ,  and  moving  to  adjourn  the  return  to  a  future  day, 
to  enable  him  to  produce  the  boy,  whom  he  admitted  to  be  in 


848  STATE    V.    PHILI'OT.  §    5 

a  certain  place,  which  motion,  (the  petitioner  consenting)  is  al- 
lowed. 

The  next  is  filing  his  return,  in  which  no  exception  is  taken, 
for  want  of  an  affidavit,  nor  averment  made  that  the  boy  is 
a  slave,  though  it  is  insisted  that  negroes  or  persons  of  color  have 
no  right  to  the  writ.  Then  an  argument  upon  the  sufficiency  of  the 
return,  w^hich  was  adjudged  evasive  and  insufficient,  and  an  attach- 
ment ordered.  And  lastly,  a  motion  for  discharge  from  the  at- 
tachment, on  two  grounds,  i.  Because  the  period  of  imprisonment 
being  indefinite,  and  unlimited  the  order  was  illegal  and  secondly, 
because  the  contempt  was  purged. 

It  is  then  disclosed  and  made  as  manifest  to  the  court  as  any 
affidavit  could  make  it,  if  Philpot's  statements  and  admission  are  to 
be  believed,  that  he  had  in  his  custody,  power  or  control,  the  boy 
James,  averred  to  be  free,  and  the  fact  not  denied  by  Philpot,  or 
the  boy  claimed  by  him  as  a  slave,  or  anv  other  cause  assigned  for 
detaining  him.  The  facts  contained  in  the  admission  authorized 
the  writ ;  the  evasive  return  and  subsequent  events  brought  to 
the  notice  of  the  court  by  Philpot  himself  render  it  necessary  to 
demand  its  strict  obedience,  and  justice  forbids  that  it  should  fail 
of  its  effect  by  reason  of  too  nice  an  adherence  to  forms.  And 
surely  unless  the  affidavit  be  of  the  very  substance  of  the  process 
itself,  the  subsequent  steps  taken  in  this  cause  have  waived  the  ir- 
regularity. It  is  the  opinion  of  the  court  that  it  has  been  waived, 
and  that  it  is  now  too  late  to  object  to  or  take  any  advantage  from 

1  ^  JJC  S^C  5|C 

(So  much  of  the  opinion  as  relates  to  the  right  of  persons  of 
color,  not  slaves  to  enjoy  the  privileges  of  the  writ,  is  omitted. 
That  portion  of  the  opinion  dealing  with  the  authority  of  the  court 
to  enforce  obedience  to  the  writ  will  be  found  under  a  subsequent 
division  of  this  section.) 

Requisites  of  the  petition. — Cudd}',  Petitioner,  131  U.  S.  280;  Andersen 
V.  Treat,  172  U.  S.  24;  Street  v.  State,  43  Miss,  i;  State  v.  Giroux,  15 
Mont.  137;  Craemer  v.  Washington,  168  U.  S.  124;  Cliampion,  Ex  parte, 
52  Ala.  311;  Maples  v.  Maples,  49  Miss.  393;  People  v.  Cowles,  59  How. 
Pr.  (N.  Y.)  287;  Maule,  Ex  parte,  19  Neb.  273;  Morris,  In  re,  40  Fed. 
824;  Nye,  Ex  parte,  8  Kans.  99;  Lawlcr,  Ex  parte,  28  Ind.  241;  Snyder, 
In  re,  17  Kan.  542;  Royster,  Ex  parte,  6  Ark.  28;  United  States  v.  Sing 
Tuck,  194  U.  S.  161;  Simmons  v.  Georgia  Iron  &  Coal  Co.,  117  Ga.  305; 
Lapique,  Ex  parte,  139  Cal.  19;  Everett,  In  re,  138  Cal.  490. 


2.     Rule  to  show  cause. 

Xo  settled  rule  can  be  laid  down  with  respect  to  the  practice 
of  issuing  a  rule  nisi  on  an  application  for  habeas  corpus.  In  Eng- 
lanr]  the  practice  of  issuing  the  rule,  seems  generally  to  obtain. 
In  America  the  mo.st  general  practice  seems  to  be  to  issue  the  writ 
directly  and  determine  the  cause  on  the  return  thereto.  By  statute 
in  some  states  this  latter  practice  is  mnde  obligatory. 


§  5  PLEADING,  PKACTICE  AND  PROCEDUKE.  849 

3.     The  return. 

"The  answer  in  writing,  signed  by  the  party  to  whom  the  writ  is 
addressed,  stating  the  time  and  cause  of  the  caption  and  detention 
of  the  prisoner  and  his  production  before  the  court  or  judge,  or, 
if  the  prisoner  be  not  produced,  then  the  reasons  for  not  producing 
him,  constituted  the  return."     Hurd,  Habeas  Corpus,  p.  235, 


In  re  CHIPCHASE. 

1896.     Supreme  Court  of  Kansas.     56  Kan.  357;  43  Pac.  264. 

Johnston,  J. — On  September  13,  1895,  H,  G.  Chipchase,  the 
manager  of  the  Missouri  &  Kansas  Telephone  Co.,  at  Wichita,  was 
arrested  for  the  violation  of  an  ordinance  of  the  city  of  Wichita 
imposing  a  license  tax  on  telephones,  and  prescribing  penalties 
for  using  them  without  complying  with  its  requirements.  The 
first  section  of  the  ordinance  provides  that  any  company,  corpora- 
tion or  person  engaged  in  the  telephone  business  in  the  city  of 
Wichita,  shall  pay  a  license  tax  of  $12  per  annum  upon  each  busi- 
ness 'phone  and  a  tax  of  $10  per  annum  on  each  residence  'phone, 
used  in  carrying  on  such  business,  and  making  it  unlawful  to  carry 
on  the  business  without  having  obtained  from  the  city  clerk  a  license 
therefor.  The  second  section  provides  that,  if  any  company,  cor- 
poration or  person,  carries  on  the  business  without  procuring  the 
license  they  will  forfeit  the  sum  of  $25  each  day  that  each  'phone 
is  used  or  operated.  The  third  section  makes  it  an  offense  to  carry 
on  the  business  without  paymg  the  tax  and  procuring  the  license, 
and  provides  that  any  manager,  agent,  servant,  or  employe  of  a 
company,  corporation  or  person  who  shall  violate  the  ordinance  shall, 
upon  conviction,  be  fined  in  any  sum  not  exceeding  $100.  The 
telephone  company  of  which  Chipchase  was  the  manager,  was  en- 
gaged in  the  telephone  business  in  Wichita,  and  it  is  alleged  that 
the  company  had  about  290  telephones  in  use  within  the  corporate 
limits  of  the  city.  The  company  refused  to  pay  the  license  tax  or 
otherwise  comply  with  the  provisions  of  the  ordinance,  and,  upon  a 
complaint  made,  Chipchase  was  arrested,  imder  a  warrant  issued  by 
the  police  judge  of  the  city  of  Wichita.  Upon  the  application  of 
Chipchase,  the  writ  of  hacbas  corpus  was  issued.  In  the  return  of 
the  city  marshal,  he  sets  forth  the  fact  that  Chipchase  is  in  his 
custody  by  virtue  of  a  warrant  duly  issued  as  aforesaid,  and  also 
setting  out  a  copy  of  the  city  ordinance,  under  which  the  petitioner 
was  prosecuted.  Chipchase  excepts  to  the  sufficiency  of  the  return, 
and  asks  to  be  discharged  from  custody.  It  is  insisted  bv  the  peti- 
tioner that  the  ordinance  is  void — First  because  the  license  tax 
is   unreasonable   and   excessive ;   second,   because   it  obstructs   and 


850  IN    RE    CHIPCHASE.  §    5 

places  a  burden  upon  interstate  commerce;  third,  because  the  in- 
struments upon  which  the  Hcense  taxes  are  assessed  are  covered  by 
letters-patent. 

In  the  application  for  the  writ  are  found  allegations  to  the  effect 
that  the  license  tax  imposed  is  grossly  excessive,  and  that,  as  the  busi- 
ness of  the  company  extends  beyond  the  limits  of  the  state,  the  license 
tax  amounts  to  a  tax  on  interstate  commerce.  These  and  other 
averments  of  the  application,  however,  are  not  admitted  in  the 
return  to  the  writ,  and  they  were  denied  by  counsel  for  the  respon- 
dent at  the  hearing.  The  questions  so  well  argued  by  counsel  are 
therefore  not  ripe  for  decision,  nor  do  any  of  the  objections  made 
afford  grounds  for  the  discharge  of  the  petitioner.  No  issue 
was  joined  nor  proof  offered  in  the  case.  The  averments  of  the  ap- 
plication are  not  to  be  taken  as  true  because  they  are  not  denied  in 
the  return.  The  return  is  not  treated  as  an  ansn^er  to  the  applica- 
tion, but  rather  as  a  response  to  the  writ.  The  averments  in  the 
application  are  made  for  the  purpose  of  obtaining  the  allowance  of 
the  writ,  and  it  is  not  necessary  that  they  should  be  answered  or 
denied  by  the  officer  in  his  return  to  the  writ.  The  statute  pre- 
scribes what  the  return  shall  state,  and  in  this  instance  it  sets  forth 
the  cause  of  restraint,  together  with  a  written  copy  of  the  authority 
inider  which  the  petitioner  is  held,  and  appears  to  comply  with  the 
statutory  requirement.  Civ.  Code,  §  668.  If  the  petitioner  de- 
sires to  controvert  the  return  or  any  part  thereof,  or  allege  any  new 
matter  showing  the  restraint  to  be  illegal,  he  may  do  so  after  the 
return  is  made.  Civ.  Code,  §  669.  In  this  way  an  issue  may  be 
formed,  and,  upon  a  hearing,  the  disputed  questions  of  fact  may  be 
settled.  As  the  ordinance  is  included  in  the  return,  we  may  inquire 
and  determine,  whether  upon  its  face  it  is  valid.  Express  authority 
has  been  given  by  the  legislature  to  lew  and  collect  license  taxes 
upon  all  callings,  trades,  professions,  nnd  occupations,  including 
telephone  companies,  within  the  limits  of  cities  of  the  first  class. 
Gen.  St.  1889,  pars.  555,  804.  In  such  cases  it  has  been  held  that 
the  municipality  is  not  limited  to  the  mere  expense  of  regulation, 
but  that  they  may  be  imposed  for  the  purpose  of  obtaining  revenue 
to  meet  the  general  expenses  of  the  city.  Fretwell  v.  City  of  Troy, 
t8  Kan.  271  ;  City  of  Newton,  v.  Atchison,  31  Kan.  151,  i  Pac.  288; 
Tullos  v.  City  of  Sedan,  31  Kan.  165,  i  Pac.  285;  City  of  Cherokee 
V.  Fox,  34  Kan.  16,  7  Pac.  625 ;  City  of  Wyandotte  v.  Corrigan, 
35  Kan.  21,  TO  Pac.  99;  City  of  Girard  v.  Bissell,  45  Kan.  66,  25 
Pac.  232.  While  the  tax  levied  appears  to  be  very  large,  we 
cannot  say  as  a  matter  of  law  that  it  is  excessive,  nor  can  we  without 
I)roof  hold  that  it  is  oppressive  or  prohibitive.  In  Fretwell  v.  City 
of  Troy,  supra,  it  was  said  that  "the  more  amount  of  the  tax  does 
not  prove  its  invalidity."  The  city  cannot  impose  a  license  tax 
beyond  the  necessities  of  the  city,  nor  can  it  impose  one  so  excessive 
as   to   prohibit   or   destroy   the   occupation    or   business.      City   of 


§  5  PLEADING,  PRACTICE  AND  PROCEDURE.  85 1 

Lyons  v.  Cooper,  39  Kan.  324,  18  Pac.  296.  Many  things,  however, 
enter  into  the  determination  of  what  constitutes  a  just  and  reasonable 
license  tax,  but  as  to  the  conditions  existing  in  Wichita  we  are 
not  advised.  There  is  the  nature  of  the  franchise  or  privileges 
enjoyed  by  the  company,  within  the  city,  the  prices  vvhich  they 
charge  for  the  service  given  by  it  to  its  patrons,  the  amount  of  prop- 
erty tax,  if  any,  paid  by  the  company,  the  current  expenses  of  the 
municipality,  and  the  amount  of  its  mdebtedness.  Without  informa- 
tion upon  these  questions,  the  court  cannot  determine  that  a  license 
tax  of  $12  per  annum  upon  a  business  'phone  and  $10  upon  a  resi- 
dence 'phone  is  prohibitive,  excessive  or  oppressive.  Habeas  corpus 
may  not  be  the  most  appropriate  proceeding  in  which  to  determine 
the  questions  presented  and  discussed  by  counsel,  but,  before  we  can 
decide  them  in  this  proceeding,  an  issue  must  be  joined,  and  the  facts 
■nust  be  either  established  by  proof  or  agreed  upon  by  the  parties. 
The  petitioner  will  be  remanded.     All  the  justices  concurring. 


In  re  ah  toy. 
1891.     U.   vS.   Circuit  Court,  N.  D.   California.     45   Fed.  795. 

Hawley,  J. — The  return  to  the  writ  states  that  the  petitioner  is 
held  in  custody  by  the  chief  of  police  of  the  city  and  county  of  San 
Francisco  under  and  by  virtue  of  a  commitment  regularly  issued 
from  the  police  court  of  said  city  and  county,  stating  that  the 
petitioner  had  been  duly  convicted  of  a  misdemeanor  in  visiting  a 
house  of  ill  fame,  and  sentenced  to  pay  a  fine,  with  the  alternative 
of  imprisonment.  The  return  does  not  state  under  what  particular 
ordinance  petitioner  was  convicted,  and  petitioner  therefore  claims 
that  the  facts  stated  in  the  return  are  not  sufficient  to  justify  his  im- 
prisonment. The  petition  for  the  writ  alleges  that  the  petitioner 
is  in  custody  for  a  supposed  violation  of  section  33  of  order  1587  of 
the  board  of  supervisors,  and  claims  that  he  is  entitled  to  his  dis- 
charge, upon  the  ground  that  said  order  is  null  and  void.  Upon  the 
hearing  before  the  commissioner,  to  whom  this  matter  was  referred, 
it  was  shown  by  petitioner  that  he  was  convicted  of  a  violation 
of  order  1955.  "amendatory  of  section  33  of  order  1587,  prohibiting 
disorderly  houses,  houses  of  ill  fame,  and  places  for  the  practice 
of  gambling."  This  amendatory  order  expressly  provides  that  it 
shall  be  unlaw^ful  for  any  person  to  "become  an  inmate  of,  or  a 
visitor  to,  ''^'  *  '^  any  '^  ''''  *  house  of  ill  fame."  It  there- 
fore affirmatively  appears  that  the  defects  complained  of  in  the 
return  were  supplied  by  the  allegations  of  the  petition  and  proofs  of- 
fered by  the  petitioner.  The  demurrer  to  the  return  is  over- 
ruled.    *     *     * 

The  petitioner  is  remanded. 


852  EX   PARTE  DURBIN.  §    5 

Ex  PARIE  DURBIN. 

1890.     Supreme  Court  of   Missouri.     102   Mo.    100. 

(So  much  of  the  opinion  as  relates  to  the  vahdity  and  effect  of 
.cumulative  sentences  of  imprisonment,  is  omitted.) 

Barclay,  J. — A  writ  of  habeas  corpus  was  recently  issued  to  the 
warden  of  the  penitentiary  at  the  instance  of  petitioner,  to  deter- 
mine the  legality  of  the  latter's  imprisonment  there.  The  warden's 
return  shows  that  the  petitioner  is  held  upon  three  commitments 
pursuant  to  three  sentences  by  the  criminal  court  of  Lafayette 
county,  one  of  which  is  for  a  term  of  three  years  for  burglary  in 
the  second  degree ;  and  another  for  a  like  term  on  another  charge 
of  the  same  nature ;  and  the  other  for  a  term  of  five  years  for 
burglarv  in  the  second  degree  and  grand  larcenv,  all  of  March  13, 
1885. 

None  of  the  sentences  names  a  date  for  the  commencement  of 
the  imprisonment  thereunder ;  but  all  contain  the  usual  language 
committing  the  defendant  to  the  custody  of  the  sheriff  to  be  by 
him    removed    to    the    penitentiary,    etc.     *     *     * 

It  appears  from  the  return  that  all  the  sentences  were  passed 
upon  the  petitioner  at  the  same  term  of  court,  and  on  the  same 
day.  (As  to  the  effect  of  which  see  Es  parte  Kayser,  (1871)  47 
Mo.  253.)  They  were  all  predicated  on  pleas  of  guilty.  Even  if  it 
were  considered  erroneous  to  sentence  him  in  any  of  these  cases 
unless  the  conviction  therein  had  preceded  any  prior  sentence  against 
him  at  the  same  term  (as  to  which  the  issues  presented  do  not  re- 
quire us  to  express  an  opinion),  it  cannot  properly  be  assumed  on 
this  record  that  the  trial  court  pursued  such  a  course.  On  the  con- 
trarv.  in  the  absence  of  any  counter  showing,  it  will  be  presumed  that 
it  did  not  take  any  action,  in  the  premises,  that  was  either  erroneous 
or  irregular. 

In  this  connection  it  is  claimed  for  i)ctiti()ner  that,  as  his  peti- 
tion for  the  writ  alleges  that  he  was  first  convicted  and  sentenced 
on  one  charge  and  afterwards  on  the  others,  those  allegations  must 
be  taken  as  true,  for  want  of  any  denial  thereof  in  the  return. 
P.ut  this  contention  rests  on  a  misapprehension  of  the  nature  of 
these  proceedings. 

The  return  is  not  designed  to  be  lesponsive  to  the  petition 
for  the  writ,  but  to  the  writ  itself.  If  the  return  is  untrue  in  any 
particular  it  may  be  met  under  the  practice  established  by  statute 
in  this  state  (R.  S.  i88c).  sec.  5372)  by  an  appropriate  proceeding 
raising  the  di'sircd  issue  upon  it.  I'm,  when  no  such  issue  is 
made,  the  facts  stated  in  a  return  by  a  i)nblic  officer  are  taken  as 
true  without  reference  to  the  allegations  in  the  petition  upon  which 
the  writ  issued.     Rx  parte  P.ryan,  (1882)  76  Mo.  253. 


§  5  PLEADING^  PRACTICE  AND  PROCEDURE.  853 

The  petitioner  is  not  illegally  restrained  of  liberty  and  accordingly 
is  remanded  to  the  custody  of  the  warden ;  all  the  judges  concurring. 


Ex  PARTE  ZEEHANDELAUR. 
1886.     Supreme  Court  of  California.     71  Cal.  238;  12  Pac.  259. 

Sharpstein,  J. — 'The  code  requires  a  person  on  whom  a  writ 
of  habeas  corpus  is  served  to  make  a  return  thereto  and  if  the 
party  is  detained  by  virtue  of  any  writ,  warrant,  or  other  written 
authority,  a  copy  thereof  must  be  annexed  to  the  return.  Pen 
Code,  §  1480.  Such  a  return  has  been  made  in  this  case,  and  the 
petitioner  excepts  to  the  sufificiency  of  it,  because,  as  he  insists, 
no  legal  cause  is  shown  for  his  imprisonment.  The  return  shows 
that  dunng  the  progress  of  a  trial  in  the  superior  court  the  petitioner 
was  called  and  sworn  as  a  witness,  and  v;as  asked  a  question  by  the 
court  which  he  refused  to  answer.  For  such  refusal  he  was  ad- 
judged guilty  of  contempt  and  ordered  to  be  imprisoned  until  he 
should  answer  the  question.  There  are  no  facts  recited  in  the  order 
which  show,  or  tend  to  show,  that  the  question  was  pertinent  to  the 
matter  in  issue.  "A  witness  must  answer  questions  pertinent  and 
legal  to  the  matter  in  issue."  Code  Civ.  Proc.  §  2065.  It  is  his 
right  "To  be  examined  only  as  to  matters  legal  and  pertinent  to  the 
issue.  Id.  §  2066.  Such  being  his  right,  we  think  it  follows  that  his 
refusal  to  answer  the  question  not  pertinent  to  the  issue,  was  no 
contempt,  and  that  the  other  adjudging  him  guilty  of  contempt 
which  fails  to  show  that  the  question  was  pertinent  to  the  issue, 
is  invalid.  Conceding  as  we  do,  that  the  court  had  jurisdiction  of 
the  action  on  trial,  we  cannot  concede  its  power  to  inquire  into 
matters  outside  the  issues  therein.  It  had  power  to  order  questions 
pertinent  to  the  issue  to  be  answered,  but  it  had  not  power  to  order 
questions  not  pertinent  thereto  to  be  answered.  As  to  matters  not  in 
issue  it  had  no  jurisdiction. 

In  order  to  show  a  legal  cause  for  the  imprisonment  of  the  pe- 
titioner, the  return  in  this  case  should  show  that  the  question 
which  he  refused  to  answer  was  pertinent  to  the  matter  in  issue 
lx.*fore  the  court,  and,  as  this  is  not  shown  by  the  return,  no  legal 
cause  for  the  imprisonment  of  the  petitioner  is  shown,  and  he 
should  be  discharged,  and  it  is  so  ordered.     *     *     * 


854  KING  V.    MAYOR  AND  BURGESSES   OF   LYME  REGIS.  i^    5 

KING  V.  MAYOR  AND  BURGESSES  OF  LYME  REGIS. 
1779.     Court  of  King's  Bench,     i   Douglas    149. 

(Action  in  mandamus  to  restore  a  member  of  a  municipality, 
claiming  to  have  been  improperly  removed.) 

(  So  much  of  the  opinion  only  as  relates  to  the  requisites  to  the 
return  to  extraordinary  writs,  is  given.) 

BuLLER,  J. —  *  *  *  gu^  jt  is  insisted  that  this  return  may 
be  true  in  everything,  and  yet  the  party  be  entitled  to  be  restored, 
and  that  he  has  no  opportunity  of  traversing  the  right,  or  bring- 
ing an  action  for  a  false  return.  I  agree  that,  in  these  returns, 
the  same  certainty  is  required  as  in  indictments,  or  returns  to 
writs  of  habeas  corpus.  Lord  Coke  has  distinguished  certainty 
in  pleading  into  three  sorts,  i.  Certainty  to  a  common  intent, 
which  is  sufficient  in  a  plea  in  bar;  2.  Certainty  to  a  certain  intent 
in  general,  as  in  counts,  replications,  etc.,  and  so  in  indictments ; 
3.  To  a  certain  intent  in  every  particular,  which  is  necessary  in 
estoppels.  The  second  of  those  sorts  is  all  that  is  required  here, 
and  I  take  it  to  mean  what,  upon  a  fair  and  reasonable  construc- 
tion, may  be  called  certain,  without  recurring  to  possible  facts 
which  do  not  appear  *  *  *  Jt  is  one  of  the  first  principles  of 
pleading,  that  you  have  only  occasion  to  state  facts ;  which  must 
be  done  for  the  purpose  of  informing  the  court,  whose  duty  it  is 
to  declare  the  law  arising  upon  those  facts,  and  to  apprise  the 
opposite  party  of  what  is  meant  to  be  proved,  in  order  to  give 
him  an  opportunity  to  answer  or  traverse  it  *  *  *  If  the  return 
be  certain  on  the  face  of  it,  that  is  sufficient,  and  the  court  cannot 
intend  facts  inconsistent  with  it,  for  the  purpose  of  making  it 
bad.  *  *  *  I  Ventr.  19,  also  proves,  i.  That  although  a  return 
be  true  in  words,  yet,  if  it  is  false  in  substance,  an  action  will  He,  and 
2.  That  presumption  and  intendment  as  far  as  they  go,  must  be  in 
favor  of  returns,  not  against  them.     *     '■'     * 

In  most  of  the  states  the  statutory  provisions  respecting  the  petition 
and  return  in  habeas  corpus  go  into  considcralilc  detail.  In  no  case,  how- 
ever, has  the  same  strictness  been  appHed  to  the  petition,  and  especially 
to  the  return  to  a  writ  of  habeas  corpus  which  has  been  applied  to  the 
pleadings  in  ordinary  civil  actions  or  even  to  those  necessary  where  other 
extraordinary  writs  are  sought  for.  What  Lord  Coke  called  "Certainty 
to  a  certain  intent  in  general,"  is  all  that  has  ever  been  required  of  a 
return  to  a  habeas  corpus  and  where  the  provisions  of  the  statute  are 
substantially  complied  with,  the  return  will  be  held  good. 

For  general  requisites  of  the  return,  see  Haller,  in  re,  3  Abb.  N.  Cas. 
(N.  Y.)  65;  Watson's  Case,  9  Ad.  &  El.  731;  Neill,  in  re,  8  Blatchf.  (U.  S.) 
136;  Waldrip,  in  re,  I  Ariz.  482;  Jackson,  in  re,  15  Mich.  417;  Hakewill,  in  re, 
22  Eng.  Law  &  Eq.  395;  Mowry,  in  re,  12  Wis.  52;  Finley,  ex  parte,  66  Cal. 
262;  Smith  v.  Hess,  91  Ind.  424;  Pate,  ex  parte,  21  Tex.  App.  igo;  Martin, 
in  re,  46  Barb.  (N.  Y.)  142;  Rex  v.  Clark,  i  Salk.  349;  Noble,  ex  parte,  96 
Cal.  362;  Patterson  v.  State,  49  N.  J.  L.  326. 


§    5  PLEADING,  PRACTICE  AND  I'ROCEDURIL.  855 

4.     Evasive  returns,  and  enforcing-  obedience  to  the  writ. 

In  the  matter  of  SAMUEL  STAGEY,  jun. 

1813.     Supreme  Court  of  New  York,     to  Johnson  327. 

Kent,  Ch.  J. — The  return  is  insufficient  and  bad' upon  the  face 
of  it.  The  writ  was  directed  to  Morgan  Lewis,  as  commander  of 
the  troops  of  the  United  States,  at  Sackett's  harbor ;  and  under 
his  title  of  "General  of  Division  in  the  Army  of  the  United  States," 
he  simply  returns  that  "the  within  named  Samuel  Stacey,  jun.,  is  not 
within  my  custody."  This  was  evidently  an  evasive  return.  He 
ought  to  have  stated,  if  he  meant  to  excuse  himself  for  the  non- 
production  of  the  body  of  the  party,  that  Stacey  was  not  in  his 
possession  or  poiver.  The  case  of  The  King  v.  Winton,  (5  Term 
R.  89),  is  to  this  point: — and  the  observations  and  decision  of  the 
K.  B.  in  that  case  are  entitled  to  our  greatest  attention.  That 
was  the  case  of  a  habeas  corpus  granted  by  a  jvtdge  in  vacation, 
and  returnable  immediately  before  him.  The  return  by  the  person 
to  whom  the  writ  was  directed  was,  that  he  had  not  the  body  of 
the  party  "detained  in  his  custody;"  and  that  return  being  filed 
in  the  K.  B.  an  attachment  on  a  rule  to  show  cause,  was  made 
absolute  against  the  party  for  an  insufficient  return.  Mr,  Jus- 
tice Grosse,  in  giving  his  opinion,  observed  "That  the  courts 
always  looked  with  a  watchful  eye  at  the  returns  to  writs  of 
habeas  corpus;  that  the  liberty  of  the  subject  essentially  depended 
on  a  ready  compliance  with  the  requisitions  of  the  writ,  and  the 
courts  were  jealous  whenever  an  attempt  was  made  to  deviate  from 
the  usual  form  of  the  return,  that  the  party  had  not  the  person  in 
his  possession,  custody  or  power,  and  that  it  had  not  been  adopted 
in  that  case,  but  an  equivocal  one  substituted,  and  the  words  "power 
and  possession"  omitted. 

The  accompanying  return,  in  this  case,  of  Torrey,  the  provost 
marshal,  does,  of  itself,  contradict  the  return  of  General  Lewis ; 
for  he  admits  that  Stacey  is  detained  in  his  custody,  under  an 
order  issued  from  the  adjutant  general's  office,  at  Sackett's  Har- 
bor, so  late  as  the  24th  of  July  last.  This  order  and  the  deten- 
tion under  it,  we  are  bound  to  consider  as  the  act  of  General 
Lewis,  the  commander  at  that  station,  and  we  are  equally  bound 
to  consider  the  prisoner  as  being  in  his  possession,  custody  and 
power. 

Here  is  then,  appearing  on  the  very  face  of  the  return,  a  con- 
tempt of  the  process. 

But  this  is  not  all.  The  affidavit  of  Butterfield  who  served  the 
Avrit,  proves  not  only  the  fact,  that  Stacey  was  then  in  the  cus- 


856  IN   THE    MATTER  OF  SAMUEL   STAGEY,   JUN.  ^    5 

tody,  under  the  orders,  and  by  the  authority  of  General  Lewis,  but 
that  the  direction  of  the  writ  was  intentionally  disregarded. 

The  only  question  that  can  be  made  is,  whether  the  motion 
for  an  attachment  shall  be  granted,  or  whether  there  shall  be  only 
a  rule  upon  the  party  offending,  to  show  cause  by  the  first  day 
of  the  next  temi,  why  an  attachment  should  not  issue.  After 
giving  the  case  the  best  consideration  which  the  pressure  of  the 
occasion  admits,  I  am  of  the  opinion  that  the  attachment  ought  to 
be  immediately  awarded. 

The  attachment  is  but  process  to  bring  in  the  party  to  answer 
for  the  alleged  contempt,  and  upon  the  present  motion,  we  must 
act,  as  the  courts  have  always,  of  necessity,  acted,  in  like  cases, 
upon  the  return  itself,  and  the  accompanying  affidavits  of  the 
complainant. 

This  is  a  case  which  concerns  the  personal  liberty  of  the  citizen. 
Stacey  is  now  suffering  the  rigor  of  confinement  in  close  cus- 
tody, at  this  unhealthy  season  of  the  year,  at  a  military  camp,  and 
under  military  power.  He  is  a  natural  born  citizen  residing  in 
this  state.  He  has  a  numerous  family  depending  upon  him  for 
support.  He  is  in  bad  health  and  the  danger  of  a  protracted  con- 
finement to  his  health,  if  not  to  his  life,  must  be  serious.  The 
pretended  charge  of  treason,  (for  upon  the  facts  before  us  we 
must  consider  it  as  a  pretext),  without  being  founded  upon  oath, 
and  without  any  specification  of  the  matters  of  which  it  might 
consist,  and  without  any  color  of  authority  in  any  military  tri- 
bunal to  try  a  citizen  for  that  crime,  is  only  aggravation  of  the 
oppression  of  the  confinement.  It  is  the  indispensable  duty  of 
this  court,  and  one  to  which  every  inferior  consideration  must 
be  sacrificed,  to  act  as  the  faithful  guardian  of  the  personal  lib- 
erty of  a  citizen,  and  give  ready  and  effectual  aid  to  the  means 
provided  by  law  for  its  security.  One  of  the  most  valuable  of 
those  means  is  the  writ  of  habeas  corpus,  which  has  justly  been 
deemed  the  glory  of  the  Fmglish  law ;  and  the  parliament  of  Eng- 
land as  well  as  their  courts  of  justice,  have,  on  several  occasions, 
and  for  the  period,  at  least  of  the  two  last  centuries,  shown  the 
utmost  solicitude,  not  only  that  the  writ,  when  called  for,  should 
be  issued  without  delay,  but  that  it  should  be  punctually  obeyed. 
(See  r)rown's  case,  Cro.  Jac.  543,  and  the  statute  of  16  Car.  T.  c. 
10,  s.  8.)  nor  can  we  hesitate  in  promptly  enforcing  a  due  return 
to  the  writ,  when  we  recollect  that,  in  this  country,  the  law  knows 
no  superior  and  that  in  England,  their  courts  have  taught  us,  by 
a  scries  of  instructive  examples,  to  exact  the  strictest  obedience  to 
whatever  extent  the  persons  to  whom  the  writ  is  directed  may  be 
clothed  with  power,  or  exalted  in  rank.  On  ordinary  occa- 
sions, the  attachment  docs  not  issue  imtil  after  the  rule  to  show 
cause;  but  whether  it  shall  or  shall  not  i'^suo  in  the  first  instance, 


§  5  I'LEADIXC,  I'RACTICE  AM)  i'KOCEDURE.  857 

must  depend  ui:)on  the  sound  discretion  of  the  court,  under  the 
circumstances  in  each  particular  case.  It  may,  and  it  often  does 
issue  in  the  first  instance,  without  a  rule  to  show  cause,  if  the  case 
be  urgent,  or  the  contempt  flagrant.  Ori  this  point  the  author- 
ities are  sufficiently  explicit.  Rex  v.  Jones,  Stra.  185:  Davies, 
ex  dem.  Povey  v.  Doe,  2  Bl.  Rep.  892.  Hawk.  tit.  Attachment, 
b    2,  c.  22,  s.  I. 

If  ever  a  case  called  for  the  most  prompt  interposition  of  the 
court  to  enforce  obedience  to  its  process,  this  is  one.  A  military 
commander  is  here  assuming  criminal  jurisdiction  over  a  private 
citizen,  is  holding  him  in  the  closest  confinement,  and  contemning 
the  civil  authority  of  the  state.  The  parties  are  also,  at  so  great 
a  distance,  that  no  rule  to  show  cause  could,  be  made  returnable 
at  this  term  ;  and  if  no  good  cause  was  shown  at  the  next  term, 
an  attachment  could  not  probably  be  issued  from  the  city  of 
New  York  where  the  court  will  then  sit,  and  be  returned  the  same 
term,  l^nless  the  attachment  goes,  the  injured  party  may  not  feel 
the  benefit  of  our  assistance  until  the  ensuing  winter.  That  delay 
would  render  the  remedy  alarmingly  impotent.  The  case  of  Rex 
V.  Earl  Ferrers,  i  Burr.  631,  is  a  precedent  in  point,  for  award- 
ing the  writ  in  the  first  instance.  In  that  case  a  second  writ  of 
habeas  corpus  was  issued,  (the  first  writ  not  being  obeyed  without 
fault,  as  the  party  who  sued  out  the  writ,  and  who  was  the  brother 
of  Lady  Ferrers,  agreed  not  to  prosecute  it),  and  not  being  obeyed, 
an  attachment  was  moved  for,  without  a  rule  to  show  cause,  and 
was  granted.  Lord  Mansfield  observed,  that  "The  court  may  en- 
force speedy  obedience  to  the  wTit,  and  the  circumstances  of  that 
case  (where  delay  might  be  dangerous)  required  it.  And,  there- 
fore, the  court  thought,  under  the  extraordinary  circumstances 
of  that  case,  an  attachment  should  issue  to  enforce  obedience  to 
the  writ  of  habeas  corpus  which  so  much  afifected  the  security  and 
preservation  of  that  lady." 

I  am,  for  these  reasons,  of  opinion  that  an  attachment  ought 
to  issue. 

Per  fotani  curiam  : — 

Ordered  that  an  attachment  in  this  case  issue  against  Gen.  Mor- 
gan Lewis ;  but  that  the  same  be  accompanied  with  a  copy  of  this 
rule,  which  is  to  operate  as  instructions  to  the  sheriflF  not  to  serve 
the  same,  if  General  Morgan  Lewis  shall  forthwith,  upon  service 
of  a  copy  of  this  rule  upon  him,  discharge  the  said  Samuel  Stacy, 
Tun.,  or  shall  cause  him  to  be  brought  before  Nathan  Williams, 
Esq.,  commissioner,  etc.,  in  obedience  to  the  habeas  corpus  here- 
tofore issued  by  him  in  this  cause. 


858  STATE    V.    I'lULPOr.  ^    5 

STATE  V.  PHILPOT. 
183 1.     Superior  Court  of  Georgia.     Dudley  46. 

(Only  so  much  of  the  opinion  as  deals  with  the  authority  of 
the  court  to  enforce  obedience  to  the  writ  and  punish  for  a  de- 
fective or  evasive  return,  is  here  given.) 

*  *  :i=  If  the  court  have  authority  to  issue  the  writ,  it  fol- 
lows of  course,  that  it  has  the  power  to  compel  obedience  to  it ;  and 
no  higher  contempt  can  be  conceived,  than  a  refusal  to  submit  to 
such  power,  and  an  obstinate  disobedience.  That  disobedience  is 
contempt,  has  not  been,  and  can  not  be  denied,  on  the  contrary  is 
admitted,  but  at  the  same  time  it  is  contended,  that  the  return  of  the 
2d  of  November,  1829,  is  an  act  of  submission,  which  being  full  and 
perfect,  no  disobedience  is  chargeable  upon  him.  This  return  has 
been  well  considered  on  a  former  occasion,  and  of  its  evasiveness 
and  insufficiency,  it  was  then  thought  there  could  be  no  serious 
question.  Such  is  still  the  opinion  of  the  court.  To  have  been  full, 
it  should  have  denied  the  custody,  possession,  power  or  control  of 
the  boy,  not  only  at  the  time  of  the  return,  but  also  at  the  service 
of  the  writ.  For  the  court  to  receive  as  sufficient,  any  return  short 
of  this,  would  be  to  enable  all  who  might  choose  to  evade  the  writ, 
easily  to  do  so,  by  simply  transferring  the  person  confined  to  an- 
other between  its  service  and  return.  The  return  of  Sir  Robert 
Viner,  cited  3  Bac.  Abr.  14,  which  was  adjudged  to  be  insufficient 
and  equivocal,  is  very  like  the  present.  That  was  to  a  pluries  writ, 
there  having  been  no  return  to  the  first  and  second.  The  return  was 
"that  at  the  receipt  of  this  writ,  nor  at  any  time  since,  has  she  been 
in  my  custody."  This  was  held  by  the  court  to  be  insufficient,  be- 
cause upon  the  return  to  a  phirics  writ  "he  ought  to  say  not  only 
at  the  time  of  the  receipt  of  this  writ,  but  of  any  other,"  and 
equivocal  because  it  simpl}-  denied  the  custody  of  the  person  al- 
leged to  be  confined.  The  only  difiference  between  that  case  and 
this,  is  that  this  is  a  return  to  a  first,  that  to  a  pluries  writ._  But 
the  same  obedience  and  return  are  required  to  each,  and  it  is  not 
our  practice  to  issue  alias  and  pluries  writs,  which  leads  to  un- 
necessary expense  and  delay,  but  to  enforce  the  first.  If  Philpot's 
return  had  shown,  that  neither  at  the  service  of  the  writ,  nor  at 
any  time  since,  had  the  boy  been  in  his  possession,  custody,  power 
or'  control,  it  would  have  been  full  and  perfect ;  but  he  evades 
a  part,  and  will  not  swear  that  at  the  service  of  the  writ  the  boy 
was  not  in  his  power  or  control.  Had  Philpot,  however,  sworn 
that  the  boy  was  not  in  his  possession,  power,  custody  or  control, 
still  if  upoii  looking  into  the  facts  stated  in  the  return,  the  con- 
science of  the  court  should  not  be  satisfied  that  alMhe  material 
facts  were  discloserl,  it  was  not  bound  to  discharge  him.  Tn  look- 
ing at  his  return,  the  conscience  of  no  man   can  be  satisfied   that 


§    5  PLEAUIXt;,   I'KACTICE  AND  PROCEDURE.  859 

all  the  facts  are  disclosed,  but  must  be  convinced  that  very  material 
facts  are  suppressed ;  and  this  conclusion,  to  which  the  return 
itself  would  lead,  becomes  irresistible  to  the  mind  of  the  court, 
when  it  recollects  the  adm.ission  of  this  suppressed  and  most  ma- 
terial fact  by  Philpot  himself  since  the  service  of  the  writ,  which 
fact  is,  that  he  had  the  boy. 

A  great  deal  of  argument  has  been  offered  by  counsel  for  the 
movant  to  show  that  the  return  should  have  been  received  as 
conclusive.  That  it  is  conclusive,  the  court  has  always  held ;  and 
if  it  have  erred  at  all  on  this  point,  the  error  has  been  in  holding 
the  return  too  conclusive,  not  only  as  against  the  applicant  for 
the  writ  of  habeas  corpus,  but  also  as  against  Philpot  himself. 
He  cannot  be  permitted  even  to  amend  his  return,  when  once  filed, 
3  Bac.  Abr.  14,  much  less  to  contradict  it,  or  aver  anything  incon- 
sistent with,  or  repugnant  to  it. 

The  6th  ground  "Because  if  any  contempt  was  committed,  it 
was  purged  by  the  affidavits  of  Philpot,  Carey,  Turley,  and  the 
certificates  filed  in  the  cause,"  has  been  formally  insisted  on,  and 
well  considered  by  the  court,  and  its  opinion,  then  expressed,  is 
still  entertained.  That  the  return  is  an  evasion  of  the  writ,  is 
1  matter  about  which  there  can  be  but  little  difference  of  opinion ; 
and  that  an  evasion  of  the  writ  is  a  contempt  of  court,  admits 
of  but  as  little  doubt.  As  soon  therefore  as  the  return  of  the 
second  of  November  was  filed,  Philpot  was  in  contempt,  and  lia- 
ble to  be  attached.  But  the  court  before  awarding  an  attach- 
ment, called  upon  the  defendant  to  show  cause  why  it  should  not 
go  against  him.  The  cause  shown  was  but  an  attempt  to  amend 
his  return,  which  could  not  be  allowed.  Philpot's  admissions  and 
conduct  on  the  17th  of  October,  followed  by  his  evasive  return, 
manifested  a  disposition  to  trifle  with  the  authority  of  the  court, 
and  placed  him  in  an  attitude  towards  it,  which  rendered  some 
unequivocal  act  of  submission,  and  earnest  and  sincere  effort  to 
obey  its  process,  necessary  to  extricate  him  from  the  situation  in 
which  he  had  voluntarily  placed  himself. 

The  rule  to  show  cause  was  to  furnish  him  an  opportunity  of 
making  this  submission,  and  showing  this  efifort,  or  of  yielding 
actual  obedience.  Not  the  slightest  efifort  at  obedience  being  shown, 
and  the  paper  amendatory  of  the  return  and  contradictory  of  the 
previous  admission  being  rejected,  an  attachment  became  unavoid- 
able, unless  the  court  would  surrender  its  own  authority.  At  this 
stage  of  the  proceedings  the  case  is  clear.  Philpot  is  manifestlv 
in  contempt,  and  his  punishment  is  the  direct  and  inevitable  con- 
sequence of  his  own  conduct.  Has  his  case  been  changed  by  any- 
thing which  he  has  since  done?  He  has  in  fact  done  nothing 
and  yet  it  is  said,  if  he  were  then  in  contempt,  he  is  now  purged 
of  it.     The  contempt,  it  must  be  recollected,  is  his  evasion  of  the 


860  STATE   V.    PHILPOT.  §    5 

writ,  and  disobedience  of  its  requirements.  Not  an  act  of  his  has 
been  shown,  nor  an  effort  on  his  part  to  obey,  although  six  months 
elapsed  from  the  return  of  the  writ  until  the  removal  of  the  boy, 
during  all  which  time  he  was  kept  within  a  few  miles  of  Philpot's 
residence,  in  the  place  where  he  had  himself  deposited  him,  and 
was  for  sale,  which  could  not  but  have  been  known  to  him,  and 
Philpot  at  large,  free  to  exert  all  his  energies. 

Great  reliance  is  placed  on  the  affidavits  of  Carey  and  Turley. 
That  of  Turley  shows  nothing  but  that  on  the  28th  of  May,  1830, 
he  purchased  the  boy  from  Carey,  and  the  next  day  removed 
him  to  the  western  country,  where  he  sold  him.  Carey's  affidavit 
shows  his  purchase  of  the  boy  from  Philpot  between  the  6th  and 
13th  of  October,  1829,  having  contracted  for  him  some  days  be- 
fore ;  that  the  boy  had  not  been  since  in  the  possession,  power, 
control,  or  custody  of  Philpot,  and  that  some  time  since  he  had 
sold  him,  and  does  not  know  where  he  is. 

These  affidavits,  so  far  from  acquitting  Philpot  of  his  contempt, 
by  showing  an  effort  and  sincere  desire  to  obey  the  writ,  and  an 
entire  failure  in  such  effort,  and  an  inability  on  his  part,  lead  the 
mind  rather  to  an  opposite  conclusion.  It  will  not  be  forgotten 
that  these  are  voluntary  affidavits  of  persons  not  subject  to  the 
process  of  the  court,  or  bound  to  state  more  than  in  the  opinion 
of  Philpot  might  suit  his  purpose,  and  were  prepared  under  his 
direction,  and  to  effect  his  enlargement  after  he  had  been  attached. 
Hence  that  is  only  stated  which  may  have  been  supposed  sufficient 
to  attain  that  end ;  and,  hence,  in  Carey's  affidavit,  the  mystery 
which  is  left  to  hang  over  the  condition  of  the  boy,  the  person 
to  whom  he  had  been  sold,  the  direction  in  which  he  had  been 
sent,  the  circumstances  under  which  he  had  been  purchased  by 
Carey  from  Philpot,  and  their  knowledge,  or  ignorance,  at  the 
time,  of  the  boy's  claim  to  freedom.  It  is  not  disclosed  that  Phil- 
pot sold  the  boy  to  Carey  without  a  knowledge  on  the  part  of 
either  or  both  of  them,  that  the  boy  was  free,  or  had  any  claim 
to  freedom ;  that  Carey  gave  any  consideration  for  him  ;  that  after 
f'hilpot's  admission  of  having  the  boy,  and  either  before  or  since 
his  return,  he  ever  made  application  to  Carey  for  the  boy  and  that 
Carey  had  refused  to  re-deliver  him,  or  that  Philpot  had  adopted 
any  measures  whatever  to  regain  the  possession  of  him.  Nor  in- 
deed was  Carey  bound  to  make  any  such  elisclosures,  his  affidavit 
being  purely  vohmtary,  yet  the  failure  to  make  full  and  entire 
disclosures  as  to  the  boy,  greatly  weakens  the  effect  of  his  testi- 
mony in  Philpot's  behalf;  and  taken  in  connection  with  all  the  cir- 
cumstances of  this  transaction,  excite  a  suspicion,  that,  although 
he  may  not  have  been  an  actual  partaker  with  Philpot,  yet  that 
he  was  not  wholly  ignorant  of  his  (Philpot's)  attempt  to  evade 
the  writ      P.nt  to  •rivo  the   fullest  effect  and   force  to  the  affidavits 


§  5  PLEADING,  PRACTICE  AND  PROCEDURE.  86l 

of  Turley,  Carey  and  Philpot,  himself,  still,  no  one  single  act 
of  obedience  to  the  writ,  or  the  slightest  disposition  to  obey  it 
has  been  shown,  while  throughout  the  whole  case  there  appear 
to  have  been  continued  and  obstinate  struggles  to  elude  and  evade. 

The  7th  ground  is  that  "the  order  of  imprisonment  was  illegal 
in  this,  that  it  imposed  upon  Philpot  a  condition  which  it  was  im- 
possible for  him  to  perform,  and  because  the  court  was  not  au- 
thorized to  require  the  production  of  the  boy,  as  the  condition  of 
his  purging  his  contempt,  if  any  were  committed."  As  has  been 
repeatedly  said,  the  attachment  was  for  an  evasion  and  disobe- 
dience of  the  writ,  and  the  only  condition  imposed  on  him  was  obe- 
.lience.  His  imprisonment  was  not  made  to  depend  upon  the  ar- 
bitrary will  of  the  judge,  but  upon  his  own  will,  if  that  will 
should  lead  to  action.  That  such  an  order  is  not  illegal,  must  be 
manifest  to  any  one  who  considers  the  order  and  allows  to  the 
court  the  power  to  enforce  its  own  process.  Such  orders  are 
of  common  occurrence,  and  are  absolutely  necessary  for  the  at- 
tainment of  justice.  They  are  issued  and  enforced  against  sher- 
iffs, justices  of  the  peace,  and  constables  who  collect  money  and 
neglect  or  refuse  to  pay  it  over  when  ordered  to  do  so ;  to  compel 
the  production  of  personal  chattels  under  a  warrant  for  restitu- 
tion, and  in  a  variety  of  instances  of  small  importance  compared 
with  personal  liberty ;  and  it  would  be  a  very  singular  defect  of 
power  in  the  court,  not  to  possess  the  same  means  of  enforcing 
the  writ  of  habeas  corpus.  If  the  court  had  a  right  to  issue  the 
writ,  it  had  a  right  to  compel  the  production  of  the  boy,  and  to 
issue  the  only  means  adequate  to  the  attainment  of  that  end.  The 
indefinite  use  of  the  means  beyond  the  attainment  of  the  end, 
Avould  be  illegal  and  improper ;  up  to  that  period  it  is  both  legal 
and  proper. 

The  opinions  of  Senator  Clinton  as  delivered  in  the  case  of  Yates 
against  the  People,  6  Johns.  Rep.  507,  were  much  relied  on  in  ar- 
gument. How  these  opinions  can  be  construed  into  a  support  of 
the  principles  assumed  on  this  seventh  ground,  the  court  has  not 
been  able  to  perceive.  The  position  for  which  Mr.  Clinton  con- 
tended, and  successfully  too,  was  that  every  commitment  to  be 
legal,  must  be  definite  and  terminable,  either  by  the  efflux  of  time, 
or  on  the  doing  of  some  act  by  the  prisoner.  In  speaking  of  im- 
prisonment made  to  depend  on  the  doing  of  some  act  by  the  pris- 
oner his  words  are  "And  v'here  an  imprisonment  is  made  to 
terminate  on  the  doing  a  certain  act  on  the  part  of  the  prisoner, 
every  legitimate  object  will  be  answered,  and  his  course  of  future 
conduct  expressly  marked  out.  He  will  not  depend  for  his  lib- 
eration on  the  varying  volition  or  fluctuating  caprice  of  the  judge." 
The   direct   application   of  these   opinions   to  the   present   case   is 


862  RIVERS    V.     MITCHELL,    JUDGE.  §    5 

readily  made  by  every  one,  but  fully  to  sustain  it.  That  the  pro- 
duction of  James  is  impossible,  remains  yet  to  be  shown. 

The  eighth  ground  is  "That  the  court  had  no  jurisdiction  over 
the  said  John  N.  Philpot,  after  the  return  was  filed,  and  therefore 
all  the  subsequent  proceedings  were  null  and  void." 

If  the  position  here  assumed  be  true  and  his  ground  be  tenable, 
it  follows  by  necessary  consequence,  that  the  filing  of  any  return, 
of  whatever  character,  to  a  habeas  corpus,  is  equivalent  to  a  dis- 
charge of  the  defendant,  and  that  the  court  can  in  no  case  inquire 
into  its  fullness  or  sufficiency;  or  if  it  do  inqure  and  find  the 
return  imperfect  and  evasive,  it  at  the  same  time  makes  the  hu- 
miliating discovery,  that  the  very  act  of  contemning  its  authority 
has  deprived  it,  not  only  of  all  power  to  protect  the  innocent  and 
helpless  who  seek  its  shelter,  but  also  of  the  powei*  of  self  pro- 
tection. The  jurisdiction  and  power  of  the  court  cannot,  how- 
ever, be  this  easily  evaded ;  for  when  once  it  takes  cognizance 
of  a  cause  it  will  see  that  full  and  ample  justice  be  done,  nor  will 
it  release   its   hold  of  the   defendant   until   that   end  be   attained. 


RIVERS  V.  MITCHELL,  JUDGE. 
t88i.     Supreme  Court  of   Iowa.     57   Ta.    193;   10  N.   W.  626. 

(Petition  in  habeas  corpus  by  wife  of  plaintiff  to  recover 
possession  and  custody  of  her  children  taken  from  her  without 
her  knowledge  or  consent  by  plaintiff,  her  husband,  from  whom 
she  had  been  separated.  The  writ  issued  and  Rivers  made  return 
thereto  that  he  had  had  possession  and  control  of  said  children 
before  said  proceedings  were  begun  but  that  five  days  before  the 
said  writ  of  habeas  corpus  was  served  on  him,  he  had  transferred 
the  custody  and  control  of  said  children  to  his  mother  and  that 
she  and  said  minors  are  no  longer  residents  of  Iowa  but  are  at 
present  in  Missouri,  and  that  he  no  longer  has  the  custody  or 
control  of  the  said  children.  Petitioner  moved  to  strike  the  answer 
from  the  files  because  it  was  equivocal  and  not  responsive  to  the 
petition,  which  was  sustained.  Plaintiff  failing  to  make  further 
return,  the  court  found  him  guilty  of  willfully  disobeying  the  writ.' 
in  refusing  to  produce  the  bodies  of  said  children  and  ordered 
him  committed  fr)r  contcmi)t.  Rivers  applied  for  and  obtained  a 
writ  of  certiorari  to  review  the  said  proceedings.) 

RoTiiROCK,  J. — I.  It  is  claimed  that  the  judge  of  the  circuit 
court  of  Dcs  Moines  did  not  have  jurisdiction  to  issue  the  writ 
Ixjcaus^'  the  application  was  not  made  to  the  court  or  judge  most 


§  5  PLEADING,  PRACTICE  AND  PROCEDURE.  863 

convenient  in  point  of  distance  to  the  applicant,  as  provided  in 
section  3452  of  the  code.  In  Thompson  v.  Oglesby,  42  Iowa  598, 
it  was  held  that  the  person  restrained  is  the  applicant.  As  we  un- 
derstand it,  the  residence  of  John  D.  Rivers  was  at  Des  Moines, 
in  Polk  County.  The  petition  charges  that  the  children  were,  to 
the  best  belief  of  the-  petitioner,  in  Des  Moines,  in  Polk  county 
or  in  Dallas  county.  This  was  sufficient  to  authorize  the  issuance 
of  the  writ.  Indeed,  if  it  were  only  alleged  that  John  D.  Rivers 
was  in  Polk  county,  and  that  he  unlawfully  restrained  the  minor 
children,  the  presumption  would  be  that  he  and  the  children  were 
together,  Thompson  v.  Oglesby,  supra.  The  court,  then,  having 
had  jurisdiction  to  issue  the  writ,  did  the  answer  show  facts  suffi- 
cient to  oust  the  jurisdiction?  Or,  rather  did  Rivers  show  good 
cause  for  not  producing  the  children  in  court,  as  provided  in 
section  3475  of  the  code?  We  think  he  did  not.  These  contests 
between  husbands  and  wives,  who  are  living  separately  and  apart 
from  each  other,  as  to  the  custody  of  their  minor  children,  are 
peculiar.  Although  denominated  proceedings  in  habeas  corpus, 
they  are  unlike  the  ordinary  proceedings  for  the  release  of  a  party 
held  upon  a  criminal  charge.  Although  the  minor  child  is  denom- 
inated as  the  applicant  for  the  writ,  no  contest  is  made  by  him. 
It  is  really  a  controversy  between  the  father  and  the  mother,  and 
the  question  for  the  court  to  determine  is,  which  of  the  contestants 
is  the  more  suitable  person  to  have  the  custody  and  control  of  the 
child?  It  was  incumbent  on  Rivers  to  show  good  cause  for  not 
producing  the  children  in  court  in  obedience  to  the  writ.  They 
v/ere  presumably  in  his  custody,  and  we  think  the  court  properly 
found  that  they  were  not  beyond  his  control.  He  made  no  show- 
ing that  he  could  not  obey  the  writ.  The  mere  fact  that  he  put 
them  in  the  possession  of  his  mother,  who  took  them  over  the 
state  line  and  into  Missouri,  is  no  showing  of  an  inability  to 
produce  them.  For  aught  that  appears  he  had  the  same  power  to 
bring  them  into  the  state,  that  he  had  to  send  them  over  the  state 
line  and  into  Missouri.  Without  some  other  showing  than  what 
was  made,  we  think  the  court  may  fairly  have  found  that  the 
minors  were  taken  out  of  the  state  for  the  very  purpose  of  evading 
any  proceeding  which  the  mother  might  institute  for  the  purpose 
of  regaining  the  possession  of  them. 

The  plaintiff  claims  that  the  mere  fact  that  the  children  were 
in  a  foreign  jurisdiction  when  the  writ  of  habeas  corpus  was  is- 
sued, deprives  the  tribunals  of  this  state  of  the  power  to  inquire 
into  the  cause  of  their  restraint.  The  case  of  Jackson,  15  Mich. 
416,  is  cited  and  relied  upon  as  an  authority  for  the  claim  so 
made.  In  that  case  it  appeared  that  Samuel  W.  Jackson,  a  minor, 
was  taken  out  of  the  state  of  Michigan,  by  the  wife  of  the  re- 
spondent,  several  months  before  the  writ  of  habeas  corpus  was 


864  RIVERS    V.    MITCHELL,    JUDGE.  §    5 

issued;  that  the  wile  remained  out  of  the  state  with  the  minor; 
and  that  she  had  been  duly  appointed  guardian  of  the  minor  by 
the  Surrogate's  court  of  Canada,  West;  and  that  the  minor  was 
not  under  the  control  of  the  respondent.  The  court  was  equally 
divided  upon  the  question  as  to  whether  or  not  the  mere  fact  of 
the  absence  of  the  child  from  the  state  was  a  sufHcient  excuse 
for  not  producing  him  in  obedience  to  the  writ.  All  of  the  judges 
were  agreed,  howxver,  that  the  fact  of  the  appointment  of  a 
guardian  in  a  foreign  jurisdiction  should  be  regarded  as  a  suffi- 
cient showing  that  the  minor  was  beyond  the  control  of  the  re- 
spondent. Upon  the  main  question,  we  think,  that  the  opinion 
of  Mr.  Justice  Cooky,  holding  that  the  mere  fact  that  the  child 
was  in  a  foreign  jurisdiction  is  not  a  sufficient  excuse  for  not 
producing  him  in  obedience  to  the  writ,  is  in  accord  with  sound 
legal  principles.  In  discussing  the  question  he  very  pertinently 
^ays : — "The  place  of  confinement  is  not.  therefore,  important  to 
the  relief,  if  the  guilty  party  is  within  reach  of  process,  so  that 
by  the  power  of  the  court  he  can  be  compelled  to  release  his 
grasp.  The  difficulty  of  affording  redress  is  not  increased  by  the 
confinement  being  beyond  the  limits  of  the  state,  except  as  the 
greater  distance  afl^ects  it.  The  important  question  is,  where  is 
the  power  of  control  exercised  ?" 

In  U.  S.  V.  Davis,  5  Cranch  622,  it  was  held  that  the  return 
to  a  writ  of  habeas  corpus  that  the  person  alleged  to  be  detained 
was  not  within  the  control  and  custody  of  the  party  to  whom  the 
writ  was  directed,  and  that  such  person  was  beyond  the  jurisdic- 
tion of  the  court,  was  evasive  and  insufficient,  it  appearing  that 
such  person  had  been  removed  in  anticipation  of  the  issuing  of  the 
writ  by  the  party  to  whom  it  was  directed. 

In  re  Stacey.  10  Johns.  327,  the  return  to  the  writ  was,  "that 
the  within  named  Samuel  Stacey  is  not  within  my  custody."  This 
Avas  held  to  be  an  evasive  return,  because  it  was  not  shown  that 
Stacey  was  not  in  the  power  or  possession  of  the  respondent.  So, 
in  the  case  at  bar,  the  return  should  have  shown  that  Rivers  did 
not  have  the  power  to  produce  the  children  in  court  in  obedience 
to  the  writ. 

The  writ  of  certiorari  will  be  dismissed  and  the  order  of  the 
court  affirmed. 

See  also  Warman,  In  re,  2  Wm.  Bl.  1204;  Shaw  v.  Smith,  8  Ind.  485; 
United  States  v.  Davis.  5  Cranch  (C.  C),  622;  Shattuck  v.  State,  51  Miss. 
50;  Commonwealth  v.  Kirkbride,  i  Brewst.  (Pa.)  541;  Sears  v.  Dessar, 
.j8  Tnd.  472;  United  States  v.  Green,  3  Mason  (U.  S.),  482;  Rep:,  v.  Rob- 
erts, 2  F.  &  F.  272. 

The  general  form  f)f  return,  where  respondent  denies  custody  is  "that 
the  party  has  not  the  person  in  his  possession,  custody  or  power."  Grose, 
C.  J.,  in"  Rex  v.  Winton,  5  Term  R.  89,  qui  vide. 


§  5  pleadiiNh;,  I'Uactice  and  procedure.  865 

5.     Duty  to  produce  the  body  of  the  person  detained. 
Ex  PARTE  COIIPLAND.     • 
1862.     Supreme  Court  of  Texas.     26  Tex.  387 ;  Supra,  p.  689. 


BOARD   OF   SUPERVISORS    OF   LOWNDES    COUNTY   v. 

LEIGH  ET  ux. 

1892.     Supreme  Court  of  Mississippi.     69  Miss.  754;  13 
South.  854. 

(So  much  of  the  opinion  as  relates  to  the  right  of  the  board 
of  supervisors  to  take  jurisdiction  over  poor  orphans  and  bind 
them  out,  is  omitted.) 

Petition  by  the  board  of  supervisors  of  Lowndes  county  against 
F.  M.  Leigh  and  wife  for  a  writ  of  habeas  corpus  to  obtain  the 
custody  of  certain  poor  orphans.  The  petition  was  dismissed  on 
demurrer,  and   petitioners  appeal.     Reversed. 

The  petition  showed  that  there  had  been  a  contest  before  the 
board  for  the  custody  of  the  children  in  question,  between  defend- 
ants and  one  Snell,  and  that  the  board  thereupon  made  an  order 
that  one  J.  W.  Gardner  should  take  charge  of  them,  and  secure 
a  suitable  home  for  them,  the  order  further  providing  that  they 
should  not  be  "placed  in  the  hands  of  either  of  the  parties  now 
contending  for  them."  The  petition  alleged  that,  at  the  time  the 
order  was  made,  the  children  were  in  defendant's  custody,  and 
that  Gardner  demanded  their  delivery -to  him,  but  that  defendants 
refused  to  surrender  them.  A  writ  was  issued,  and  returned  by 
the  sheriff  with  the  indorsement  that  it  had  been  executed  on  the 
defendants,  but  that  the  children  were  not  found.  In  this  state 
of  the  case,  defendants  filed  a  demurrer  to  the  petition  which  was 
sustained. 

Campbell,  C,  J. — The  return  "Not  found"  made  the  writ  of 
habeas  corpus  in  this  case  a  failure,  and  the  court  should  not 
have  proceeded  further  with  the  case,  until  it  had  secured  the 
bodies  of  the  children.  Especially  should  it  not  have  permitted 
the  appellees  to  be  heard  until  relieved  of  the  suspicion  created 
by  the  allegations  of  the  petition,  coupled  with  the  return  of  the 
sheriff,  that  the  children  had  been  concealed  or  removed  to  evade 
the  writ.  The  proper  procedure  would  have  been  to  issue  a  writ, 
directed  to  the  defendants,  requiring  them  to  produce  the  bodies, 
or  show  to  the  satisfaction  of  the  court,  that  they  could  not.  They 
should  not  be  permitted  to  test  the  question  in  dispute  about  the 
custody  of  the  children  until  the  children  are  before  the  judge, 
to  be  disposed  of  by  his  determination.     *     *     * 

Reversed  and  remanded. 


COMMONWEALTH    V.    DANIEL    CHANDLER.  .^    5 

COMMONWE.VLTH  v.  DANIEL  CHANDLER. 
1814.    Supreme  Judicial  Court  of  Massachusetts,    ii  Mass.  83. 

Caleb  Coggeshall  made  application  to  the  court  for  a  writ 
of  habeas  corpus,  to  be  directed  to  the  said  Chandler,  a  lieutenant 
in  the  army  of  the  L^nited  States,  requiring  him  to  bring-  in  the 
body  of  Plenry  H.  Coggeshall,  whom  the  said  Caleb  stated  to  be 
his  son,  a  minor  and  under  his  care,  and  whom  the  said  Chandler 
detained  under  pretense  of  an  enlistment  into  the  army  of  the 
United  States.  L^pon  this  application,  supported  by  affidavit  of 
the  principal   facts,  the  court  ordered  the  writ  to  go. 

Chandler  made  return  upon  the  writ,  in  substance,  that  he  could 
not  bring  in  the  body  of  said  Henry  H.,  because  he,  the  said 
Henry  H.,  was  not  in  his  custody,  or  within  his  control,  at  the 
time  of  the  service  of  said  writ,  nor  did  he  know  where  he  was ; 
he  further  returned,  that,  some  days  previous,-  the  said  Henry  H., 
had  enlisted  into  the  army,  but  had  immediately  after  deserted ; 
and  he  made  a  copy  of  the  enlistment  a  part  of  the  return ;  by 
which  it  appeared  that  the  said  Henry  H.  stated  himself  to  be  of 
age  when  he  enlisted. 

Gorham  for  the  commonwealth  moved  for  leave  to  prove  that 
the  return  was  false.  He  observed  that  the  statute  empowers  the 
court  to  compel  obedience,  and  to  punish  disobedience  to  the  writ 
by  attachment.  And  surely  a  higher  act  of  disobedience  can- 
not be  supposed  than  a  false  return.  If  the  truth  of  the  return 
cannot  be  questioned,  the  provisions  of  the  statute  may  be  always 
evaded,  and  the  writ  be  rendered  ineffectual.  There  is,  indeed, 
a  penalty  of  100  pounds  for  disobedience ;  and  the  party  injured 
is  entitled  to  his  action  on  the  case  for  a  false  return.  But  these 
consequences  will  be  disregarded  in  many  cases ;  and  generally 
in   those   of  great   outrage   and    requiring   the   most   speedy   relief. 

But  Gorham  upon  further  inquiry,  finding  that  there  was,  in 
fact,  a  desertion,  as  stated  in  Chandler's  return,  waived  his  motion ; 
and  the  court  gave  no  opinion  on  this  point. 

Gorham  then  moved  for  leave  to  prove  that  the  said  Henry  H. 
was  a  minor,  etc.,  with  the  view  that,  if  the  fact  was  proved, 
the  court  might  pass  an  order  declaring  that  the  original  taking 
was  unlawful,  and  that  the  said  Henry  H.  might  continue  to  go  at 
large,  notwithstanding  the  pretended  enlistment.  He  said,  that, 
although,  it  appeared,  by  the  return,  that  the  lad  was  at  large, 
yet  it  also  appeared  that  the  officer  had,  prima  facie,  a  good  right 
to  take  and  detain  him.  One  object  of  the  statute  is,  that  the 
party  shall  not  be  restrained  again  for  the  same  cause,  where  he 
hns  been  liberated.  TTcre,  though,  he  is  now  free,  there  exists  a 
lawful    right   prima  facie  to   seize   him.      The   court   has   awarded 


§    5  PLEADI.XG,  TRACTICE  AND  PKOCEDURE.  867 

the  writ  of  habeas  corpus  on  the  appHcation  of  a  master,  where 
it  appeared  that  the  minor  had  enHsted  voluntarily  and  was  not 
detained  against  his  wnll,  and  has  discharged  the  minor  under  such 
circumstances.  This,  in  effect,  only  annulled  the  authority  to  hold 
him ;  for  he  was  free  before,  so  far  as  his  own  will  and  consent 
could  make  him.  The  discharge  merely  restored  to  the  master 
the  right  of  custody  of  his  apprentice.  We  wish  to  prove  a  fact 
which  shall  annul  the  authority  which  (as  appears  by  the  return) 
the  officer  has  to  retake  him. 

By  the  Court.  It  appearing,  by  the  return  of  the  respondent, 
that  the  person  was  not  in  his  custody,  nor  within  his  control,  at 
the  time  of  the  sendee,  the  writ  is  without  effect.  It  will  be 
Lime  enough  to  hear  evidence  of  the  facts  in  the  case  when  the 
party  is  brought  before  us.  Until  then,  we  can  take  no  order  upon 
the  subject.     The  return  must  be  taken  for  true. 

Motion  overruled 


PEOPLE  EX  REL.  WINSTON  v.  WINSTON. 

1898.     Supreme  Court  of  New  York,   Appellate  Division. 
52  N.  Y.  Supp.  814. 

(That  portion  of  the  opinion,  reviewing  the  provisions  of  the 
New  York  Habeas  Corpus  Act,  is  omitted.) 

Ingraham,  J. —  *  *  *  Yi^g  petition  upon  which  the  writ 
in  this  case  was  granted  alleged  that  the  infant  whose  custody 
was  sought  was  imprisoned  and  restrained  of  her  liberty  at  No. 
243  E.  I20th  Street,  in  the  city  of  New  York,  and  in  the  borough 
of  Manhattan,  by  Lillian  Winston,  and  that  said  Lillian  Winston 
resided  at  such  address  in  the  city  of  New  York.  Upon  the  re- 
turn of  that  writ  this  allegation  was  denied.  The  return  alleges 
that  the  said  infant  is  now  living  at  108-110  Fourteenth  Street. 
Hoboken,  N.  J.,  the  home  of  the  respondent,  and  has  been  so  liv- 
ing with  the  respondent  since  the  second  day  of  March,  1898 ; 
and  that  the  said  infant  is  not,' and  has  not  been  a  resident  of  the 
state  of  New  York  since  the  last-mentioned  date.  To  that  re- 
turn no  traverse  was  interposed,  and  by  it  a  material  fact,  re- 
quired to  be  alleged  in  the  petition  upon  which  the  writ  was 
awarded,  was  put  at  issue,  and  a  question  of  fact  was  then  pre- 
sented upon  which  rested  the  jurisdiction  of  the  court  to  pass 
upon  the  question  which  the  relator  sought  to  have  determined; 
for  if  the  infant  and  her  mother,  in  whose  custody  she  was,  were, 
at  the  time  the  writ  was  issued,  bona  fide  residents  of  another 
state,  and  the  infant  was  not  within  this  state,  the  court  evidently  had 
no    jurisdiction     to    pass    upon    the     question     of    the    custody; 


868  PEOPLE    EX    REL.    WINSTON    V.    WINSTON.  §    5 

of  the  child,  and  should  have  dismissed  the  proceeding.  The 
relator,  being  a  resident  of  this  state,  was  entitled  to  apply 
to  the  court  for  a  writ  of  habeas  corpus  requiring  the  body 
of  the  child  to  be  produced  before  the  court;  but  if  the 
child,  at  the  time  that  writ  was  issued,  was  actually  a  resident  of 
another  state,  and  was  actually  in  that  state  under  the  care  and 
custody  of  the  mother,  who  was  also  a  resident  of  that  state, 
the  right  of  the  parent  to  the  care  and  custody  of  the  child  cannot 
be  determined  by  the  court  of  the  state  in  which  the  child  was  not 
a  resident,  or  was  not  actually  present  before  the  court.  The  fact 
of  the  residence  of  the  father  in  this  state,  would  justify  the  ap- 
plication to  the  courts  of  this  state  for  the  custody  of  the  child, 
and,  if  the  child  was  actually  within  the  jurisdiction  of  the  court, 
the  question  as  to  the  custody  could  be  determined.  Jurisdiction 
over  the  child  must  be  obtained,  and  that  jurisdiction  can  only  be 
obtained  by  the  presence  of  the  child  before  the  court,  as  it  is  only 
when  a  person  is  detained  in  custody  within  this  state  that  the  writ 
of  habeas  corpus  is  applicable.  There  is  no  question  here  of  a  per- 
son actually  a  resident  of  this  state  removing  a  child,  who  is  also 
such  a  resident,  from  the  state,  for  the  purpose  of  avoiding  the 
jurisdiction  of  the  court.  There  was  no  traverse  interposed  to 
the  return  which  presents  such  a  question.  That  the  court  has 
jurisdiction  over  its  citizens  to  determine  this  question  may  be 
assumed ;  and  where  a  citizen  and  resident  of  this  state,  for  the 
purpose  of  avoiding  the  jurisdiction  of  this  court,  removes  a  child 
from  the  state,  the  court  may  enforce  the  return  of  the  child  to 
the  state  where  it  can  obtain  jurisdiction  of  the  person,  in  whose 
custody  and  control,  the  child  is,  so  that  the  court  may  have  juris- 
diction over  the  person  of  the  child,  and  thus  determine  the  ques- 
tion as  to  its  custody.  In  such  a  case,  if  the  person  in  whose 
custody  the  child  is  were  within  the  jurisdiction  of  the  court, 
and  if  such  person  refused  to  obey  the  direction  of  the  court  to 
produce  the  child  before  it,  the  court  would  then  have  the  power, 
under  section  2028  of  the  code,  to  issue  an  attachment,  and  com- 
mit the  person  thus  refusing  to  obey  the  direction  of  the  court 
until  such  direction  was  obeyed ;  but  until  the  child  is  actually 
produced  before  the  court,  so  that*  it  is  within  its  jurisdiction,  it 
seems  to  me  clear  that  there  can  be  no  adjudication  upon  the 
question  as  to  the  custody  of  the  child.  And  where,  upon  the 
return  to  the  writ,  it  appears  that  the  child  was  not  actually  a 
resident  of  or  within  this  state,  or  not  under  the  control  or  in 
the  cu.stody  of  a  person  who  is  a  resident  of  this  state,  the  court 
then  has  no  jurisdiction  to  determine  in  such  a  proceeding  the 
question  of  the  custody  of  such  non-resident.  It  was  also  error 
for  the  court  to  award  the  custody  of  the  child  to  a  party  to  the 
proceeding  without  ihe  child  being  before  the  court,  and  without 
an    examination    into   the   merits   of  the   application,    even   though 


^  5  PLEADIKG,  PRACTICE  AND  PROCEDURE.  869 

the  person  in  whose  custody  the  child  was  had  failed  to  make  a 
return,  and  was  in  contempt.  The  one  consideration  in  determin- 
ing a  proceeding  of  this  character,  is  the  welfare  of  the  child. 
The  character  of  the  parents,  when  each  claims  the  right  to  have 
the  care  and  custody  of  the  child  awarded,  is  a  matter  to  be  in- 
quired into  by  the  court,  to  determine  to  whom  the  custody  of 
the  child  should  be  awarded ;  and  upon  the  facts  being  ascertained 
the  court  has  to  determine  what  would  best  subserve  the  interests 
of  the  child,  and  the  custody  of  the  child  will  not  be  taken  from 
one  parent  and  given  to  another  merely  to  punish  one  of  the 
parents  for  failure  to  comply  with  an  order  of  this  court.  This 
question  received  very  careful  consideration  by  this  court  in  the 
case  of  Sternberger  v.  Sternberger,  12  App.  Div.  398,  42  N.  Y. 
Supp.  423,  and  it  is  only  necessary  to  refer  to  that  case  for  the 
principles  which  should  control  the  court  in  determining  proceed- 
ings of  this  character. 

I  think,  therefore,  that  the  order  appealed  from  was  unauthor- 
ized, and  should  be  reversed,  with  $10  costs  and  disbursements. 
All  concur. 


Ex  PARTE  BRYANT. 
1803.     Supreme  Court  of  Vermont.     2  Tyler  269. 

At  the  last  term  the  grand  jury  presented  an  indictment  against 
William  Bryant,  billa  vera.  A  capias  issued,  and  he  was  appre- 
hended and  gave  bail,  with  sureties  for  his  personal  appearance 
at  this  term. 

On  motion  of  the  state  attorney,  the  crier  was  proceeding  to 
call  the  principal ;  when 

Keyes  for  the  sureties,  suggested  to  the  court,  that  Bryant  was 
a  prisoner  for  debt  in  Woodstock  gaol,  Windsor  county,  and  he 
moved  for  a  writ  of  habeas  corpus  to  bring  him  into  court  for 
trial  in  discharge  of  the  recognizance. 

The  court  ordered  a  writ  of  habeas  corpus  ad  prosequendum 
to  issue,  directed  to  the  sheriff  of  Windsor  county,  as  keeper  in 
chief  of  that  prison. 

The  sheriff  of  Windsor  county  returned,  that  the  prisoner  was 
in  his  custody,  but  sick  and  languishing,  so  that  he  could  not  be 
removed  without  endangering  his  life,  and  therefore  prayed  to  be 
in  mercy  for  not  obeying  the  writ. 

The  state  attorney  olDJected  to  the  validity  of  the  return,  and 
moved  for  a  rule  upon  the  sheriff  for  a  contempt. 

Sed  per  curiam.  The  return  is  satisfactory  to  the  court.  If 
the  prisoner  be  dangerously  sick,  it  is  a  sufficient  reason  why  he 


370  BRASS  Crosby's  case.  g  5 

should  not  have  been  removed ;  but  a  return  of  this  nature,  it 
is  expected,  will  in  future  be  accompanied  with  affidavits  of  phy- 
sicians, that  the  court  may  judge  whether  the  bodily  indisposi- 
tion of  the  prisoner  be  so  great  as  to  justify  the  sheriff  in  his 
disobedience  to  the  w^rit.     *     *     * 

« 

See  also  People  v.  Winston,  56  N.  Y.  S.  323;  Rex  v.  Winton,  5  Term  R. 
89;  Stacy,  In  re,  10  Johns.  (N.  Y.)  328;  State  v.  Jones,  32  S.  Car.  583; 
Sifford,  Ex  parte,  5  Am.  Law  Reg.  659;  Rex  v.  Wright,  2  Burr.  1099; 
Rex  V.  Turlington,  3  Burr.  11 15;  Rivers  v.  Mitchell,  57  Iowa  193;  People 
V.  Heffernan,  38  How.  Pr,  (N.  Y.)  402;  Rex  v.  Clarke,  3  Burr.  1362; 
Medley,   Petitioner,   134  U.    S.    160. 

At  common  law  the  return  need  not  be  verified ;  by  statute  now,  in  most 
of  the  states,  such  verification  is  required.  The  Federal  Courts  follow 
the  common  law  practice  and  hence  the  return  of  a  federal  officer  or  agent 
to  the  writ  when  issued  from  the  court  of  a  state  whose  statute  requires 
verification,  need  not  be  verified.     Neill,  In  re,  8  Blatch.   (U.  S.)    156. 

Where  the  prisoner  is  detained  by  virtue  of  a  warrant,  commitment, 
writ  or  other  written  authority,  the  return  should  include  a  copy  thereof. 
State  v.  Richardson,  34  Minn.  115;  Smith  v.  Hess,  91  Ind.  424;  Waldrip, 
In  re,  i  Ariz.  482;  Mowry,  In  re,  12  Wis.  52. 

Where  the  commitment  is  in  open  court  to  an  officer  there  present,  a 
warrant  is  obviously  unnecessary,  but  the  return  should  plainly  indicate 
the  proceedings  had.     Rex  v.  Clerk,  i  Salk.  349. 


6.     The  return,  to  whom  directed. 

BRASS   CROSBY'S   CASE. 
1771.     Court  of   Common   Ple.vs.     2   Wm.    Blackstone   754. 

Glyn  rrwDved  on  Thursday,  i8th  April,  for  a  habeas  corpus, 
to  bring  up  the  body  of  Brass  Crosby,  Esq.,  Lord  Mayor  of  the 
City  of  London ;  on  affidavit,  that  he  was  confined  in  the  Tower,  by 
virtue  of  a  warrant,  from  Sir  Eletcher  Norton,  speaker  of  the 
House  of  Commons,  a  copy  whereof  was  annexed.  Per  cur.  Take 
your  hab.  cor. 

On  Monday,  the  22d  of  April,  Major  Collins,  Fort  Major  of 
{lie  Tower,  attended  with  the  prisoner,  in  the  absence  of  Major 
Ransford,  Deputy  Lieutenant  of  the  Tower;  who  was  confined 
with  the  gout,  but  had  signed  a  return  of  the  cause  of  his  com- 
mitment and  detention,  directed  to  the  chief  justice  only,  and  not 
to  the  other  judges  of  the  court.  On  which  Glyn  moved  to.  dis- 
charge the  prisoner ;  because  no  legal  return  was  made  to  the 
hnhcns  corpus.  But  the  court  held  the  direction  to  be  surplusage, 
and  that  the  return  might  bo  good  without  any  direction  at  all. 
The  writ  and  return  were  therefore  filed  and  read.     *     ^=     * 


§    6  SUSPENSION     OF    THE    WRIT.  87I 

7.     Particular  matters  of  practice  and  statutory  regulation. 

In  most  of  the  states  the  means  employed  to  test  the  sufficiency 
of  the  petition,  is  a  motion  to  quash  the  writ.  Service  of  the  writ 
is  usually  governed  by  the  rules  applicable  to  ordinary  civil  process. 
Under  the  old  practice  the  return  was  held  conclusive  as  to  its 
averments  and  relator's  only  remedy  was  an  action  for  false  im- 
prisonment. Under  the  modern  practice,  the  return  may  be  duly 
traversed  and  the  facts  therein  set  up  be  put  in  issue.  Penalty  for 
a  false  return,  is  attachment  for  contempt.  What  the  effect  of  a 
discharge  on  habeas  corpus  is,  is  doubtful ;  the  weight  of  authority 
perhaps  holds  such  discharge  to  be  no  bar  to  a  prosecution  on  the 
same  state  of  facts  before  a  court  having  competent  jurisdiction. 
In  most  of  the  states,  as  under  the  English  Act,  the  statutes  pro- 
vide severe  penalties  for  refusal  to  issue  the  writ  on  a  proper 
cause  shown  or  for  re-imprisoning  the  person  for  the  same  cause 
or  aiding  or  assisting  in  obstructing  proper  service  and  return 
to  the  writ.  Appeals  from  the  decisions  of  inferior  tribunals  in 
habeas  corpus  proceedings  are  usually  provided  for  by  statute ;  by 
the  act  of  1885  such  appeals  lie  from  the  United  States  Circuit 
Court  to  the  Supreme  Court.  But  in  all  such  cases  it  is  rare  for  the 
appellate  court  to  disturb  the  findings  of  fact  of  the  lower  tribunal. 


Section  6. — Suspension  of  the  Writ. 

I.     By  the  federal  government. 

Ex  PARTE  MERRYMAN. 

1861.     U.  S.  Circuit  Court,  D.  Maryland.     9  Am.  Law  Reg.  524; 
17  Fed.  Cas.   144,   No.  9,487. 

Taney,  Circuit  Judge. — The  application  in  this  case  for  a  writ 
of  habeas  corpus  is  made  to  me  under  the  fourteenth  section  of  the 
Judiciary  Act  of  1789  (i  Stats.  81),  which  renders  effectual  for 
the  citizen  the  constitutional  privilege  of  the  writ  of  Jjabcas  corpus. 
This  act  gives  to  the  courts  of  the  United  States,  as  well  as  to  each 
justice  of  the  Supreme  Court,  and  to  every  district  judge,  power 
to  grant  writs  of  habeas  corpus  for  the  purpose  of  an  inquiry  into 
the  cause  of  commitment.  The  petition  was  presented  to  me,  at 
Washington,  under  the  impression  that  I  would  order  the  prisoner 
brought  before  me  there,  but  as  he  was  confined  in  Fort  McHenry, 
in  the  city  of  Baltimore,  which  is  in  my  circuit,  I  resolved  to  hear 
it  in  the  latter  city,  as  obedience  to  the  writ,  under  such  circum- 
stances, would  not  withdraw  General  Cadwalader,  who  had  him 
in  charge,  from  the  limits  of  his  military  command. 


872  EX    PARTE    MERRY  MAX.  §    6 

The  petition  presents  the  following  case:  The  petitioner  re- 
sides in  Maryland,  in  Baltimore  county ;  while  peaceably  in  his  own 
house,  with  his  family,  it  was,  at  two  o'clock  on  the  morning  of  the 
25th  of  May,  1861,  entered  by  an  armed  force,  professing  to  act 
under  military  orders ;  he  was  then  compelled  to  rise  from  his 
bed,  taken  into  custody,  and  conveyed  to  Fort  McHenry,  where 
he  is  imprisoned  by  the  commanding  officer,  without  warrant  from 
any  lawful  authority.    . 

The  commander  of  the  fort.  General  George  Cadwalader,  by  whom 
he  is  detained  in  confinement^  in  his  return  to  the  writ,  does  not 
deny  any  of  the  facts  alleged  in  the  petition.  He  states  that  the 
prisoner  was  arrested  by  order  of  General  Keim,  of  Pennsylva- 
nia, and  conducted  as  aforesaid  to  Fort  McHenry,  by  his  order, 
and  placed  in  his  (General  Cadwalader's)  custody,  to  be  there 
detained  by  him  as  a  prisoner, 

A  copy  of  the  warrant  or  order  under  which  the  prisoner  was 
arrested  was  demanded  by  his  counsel,  and  refused ;  and  it  is  not 
alleged  in  the  return,  that  any  specific  act,  constituting  any  oflFense 
against  the  United  States,  has  been  charged  against  him  upon 
oath,  but  he  appears  to  haye  been  arrested  upon  general  charges  of 
treason  and  rebellion,  without  proof  and  without  giving  the  names 
of  the  witnesses,  or  specifying  the  acts  which,  in  the  judgment  of 
the  military  office  constituted  these  crimes.  Haying  the  prisoner 
thus  in  custody,  upon  these  vague  and  unsupported  accusations, 
he  refuses  to  obey  the  writ  of  habeas  corpus,  upon  the  ground  that 
he  is  duly  authorized  by  the  president  to  suspend  it.     *     *     * 

As  the  case  comes  before  me,  therefore,  I  understand  that  the  pres- 
ident not  only  claims  the  right  to  suspend  the  operation  of  the  writ 
of  habeas  corpus  himself,  at  his  discretion,  but  to  delegate  that 
power  to  a  military  officer,  and  to  leave  it  to  him  to  determine 
whether  he  will  or  will  not  obey  judicial  process  that  may  be  served 
upon  him.  No  official  notice  has  been  given  to  the  courts  of  justice, 
or  to  the  public,  by  proclamation  or  otherwise,  that  the  president 
claimed  this  power,  and  had  exercised  it  in  the  manner  stated 
in  the  return.  And  I  certainly  listened  to  it  with  some  surprise,  for 
I  had  supposed  it  to  be  one  of  those  points  of  constitutional  law 
about  which  there  was  no  difference  of  opinion,  and  that  it  was  ad- 
mitted on  all  hands  that  the  privilege  of  the  writ  could  not  be 
suspended,  except  by  act  of  congress. 

When  the  conspiracy  of  which  Aaron  Burr  was  at  the  head, 
became  so  formidable,  and  was  so  extensively  ramified,  as  to 
justify,  in  Mr.  Jefferson's  opinion,  the  suspension  of  the  writ, 
he  claimed,  on  his  part,  no  power  to  suspcncl  it,  but  communicated 
his  opinion  to  congress,  with  all  the  proofs  in  his  possession,  in 
order  that  congress  might  exercise  its  discretion  upon  the  subject, 
aufl  ditcrminc  whether  the  public  safety  required  it.  And  in  the 
(1. 1.;it,   Mliieii  took  place  upon  the  subject,  no  one  suggested  that  Mr. 


§    6  SUSPENSION     OF     THE     WRIT.  873 

Jefferson  might  exercise  the  power  himself,  if,  in  his  opiniun,  the 
pubHc  safety  demanded  it.     '■'     *     * 

The  clause  of  the  constitution,  which  authorizes  the  privilege 
of  the  suspension  of  the  writ  of  habeas  corpus,  is  in  the  9th  section 
of  the  first  article.  This  article  is  devoted  to  the  legislative  de- 
partment of  the  United  States,  and  has  not  the  slightest  reference 
to  the  executive  department.  It  begins  by  providing  "that  all  legis- 
lative powers  therein  granted,  shall  be  vested  in  a  congress  of  the 
United  States,  which  shall  consist  of  a  senate  and  house  of  repre- 
sentatives." And  after  prescribing  the  manner  in  which  these 
two  branches  of  the  legislative  department  shall  be  chosen,  it  pro- 
ceeds to  enumerate  specifically  the  legislative  powers  which  it 
thereby  grants  (and  legislative  powers  which  it  expressly  prohibits), 
and  at  the  conclusion  of  this  specification,  a  clause  is  inserted  giving 
congress  "the  power  to  make  all  laws  which  shall  be  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof."     ^'     '''     * 

*  *  *  The  great  importance  which  the  framers  of  the  consti- 
tution attached  to  the  privilege  of  the  writ  of  habeas  corpus,  to 
protect  the  liberty  of  the  citizen,  is  proved  by  the  fact,  that  its 
suspension,  except  in  cases  of  invasion  or  rebellion,  is  first  in  the  list 
of  prohibited  powers ;  and  even  in  these  cases  the  power  is  denied, 
and  its  exercise  prohibited,  unless  the  public  safety  shall  require  it. 

It  is  true,  that  in  the  cases  mentioned,  congress  is,  of  necessity  the 
judge,  of  whether  the  public  safety  does  or  does  not  require  it; 
and  their  judgment  is  conclusive.  But  the  introduction  of  these 
words  is  a  standing  admonition  to  the  legislative  body  of  the 
danger  of  suspending  it,  and  of  the  extreme  caution  they  should 
exercise,  before  they  give  the  government  of  the  United  States 
such  power  over  the  liberty  of  a  citizen. 

It  is  the  second  article  of  the  constitution  that  provides  for  the 
organization  of  the  executive  department,  enumerates  the  powers 
conferred  on  it,  and  prescribes  its  duties.  And  if  the  high  power 
over  the  liberty  of  the  citizen  now  claimed,  was  intended  to  be 
conferred  on  the  president,  it  would  undoubtedly  be  found  in  plain 
words  in  this  article ;  but  there  is  not  a  word  in  it  that  can  furnish 
the  slightest  ground  to  justify  the  exercise  of  the  power.     *     *     * 

The  only  power,  therefore,  which  the  president  possesses,  where 
the  "life,  liberty  or  property"  of  a  private  citizen  is  concerned,  is  the 
power  and  duty  prescribed  in  the  third  section  of  the  second  article, 
which  requires  "that  he  shall  take  care  that  the  laws  shall  be 
faithfully  executed."  He  is  not  authorized  to  execute  the  laws 
himself,  or  through  agents  or  officers,  civil  or  military,  appointed 
by  himself,  but  he  is  to  take  care  that  they  be  faithfully  carried 
into  execution,  as  they  are  expounded  and  adjudged  by  the  co-ordi- 
nal2  branch  of  the  government  to  which  that  duty  is  assigned  by  the 


874  Ii>^    I'ARTE    MEUUYMAN,  §    6 

constitution.  It  is  thus  made  his  duty  to  come  in  aid  of  the  judicial 
authority,  if  it  shall  be  resisted  by  a  force  too  strong,  to  be  over- 
come without  the  assistance  of  the  executive  arm ;  but  in  exercising 
this  power  he  acts  in  subordination  to  judicial  authority,  assisting 
it  to  execute  its  process  and  enforce  its  judgments. 

With  such  provisions  in  the  constitution,  expressed  in  language 
too  clear  to  be  misunderstood  by  any  one,  I  can  see  no  ground 
zvhatever  for  supposing  that  the  president,  in  any  emergency,  or 
in  any  state  of  things,  can  authorise  the  suspension  of  the  privi- 
leges of  the  zvrit  of  habeas  corpus,  or  the  arrest  of  a  citizen,  except 
in  aid  of  the  judicial  poiver.  He  certainly  does  not  faithfully  ex- 
ecute the  laws,  if  he  takes  upon  himself  legislative  power,  by  sus- 
pending the  writ  of  habeas  corpus,  and  the  judicial  power  also, 
by  arresting  and  imprisoning  a  person  without  due  process  of  law. 

Nor  can  any  argument  be  drawn  from  the  nature  of  sover- 
eignty, or  the  necessity  of  government,  for  self-defense  in  times 
of  tumult  and  danger.  The  government  of  the  United  States 
is  one  of  delegated  and  limited  powers :  it  derives  its  existence 
and  authority  altogether  from  the  constitution,  and  neither  of  its 
branches,  executive,  legislative  or  judicial,  can  exercise  any  of  the 
powers  of  government  beyond  those  specified  and  granted ;  for  the 
tenth  article  of  the  amendments  to  the  constitution,  in  express  terms, 
provides  that  "the  powers  not  delegated  to  the  United  States  by  the 
constitution,  nor  prohibited  by  it  to  the  states,  are  reserved  to  the 
states,  respectively  or  to  the  people."     *     *     * 

While  the  value  set  upon  this  writ  in  England  has  been  so  great, 
that  the  removal  of  the  abuses  which  embarrassed  its  employment 
has  been  looked  upon  as  almost  a  new  grant  of  liberty  to  the  subject, 
it  is  not  to  be  wondered  at,  that  the  continuance  of  the  writ  thus 
made  effective  should  have  been  the  object  of  the  most  jealous 
care.  Accordingly  no  power  in  England  short  of  that  of  parliament 
can  suspend  or  authorize  the  suspension  of  the  writ  of  habeas  corpus. 
I  quote  again  from  Blackstone  (i  Bl.  Com.  136)  :  "But  the  hap- 
piness of  our  constitution  is,  that  it  is  not  left  to  the  executive 
power  to  determine  when  the  danger  of  the  state  is  so  great  as  to 
render  this  measure  ex]:)edient.  It  is  the  parliament  only  or  legis- 
lative power  that,  whenever  it  sees  proper,  can  authorize  the  crown 
by  suspending  the  habeas  corpus  for  a  short  and  limited  time,  to 
imprison  suspected  persons  without  giving  any  reason  for  so  doing." 
If  the  president  of  the  United  States  may  suspend  the  writ,  then 
the  constitution  of  the  United  States  has  conferred  upon  him  more 
regal  and  absolute  iK)wer  over  the  liberty  of  the  citizen,  than  the 
peoi)]c  of  England  have  thought  it  safe  to  entrust  to  the  crown ;  a 
]K)\ver  which  the  queen  of  l-jigland  cannot  exercise  at  this  day,  and 
which  coidd  nr)t  have  been  lawfully  exercised  by  the  sovereign  even 
in  the  reign  of  Charles  the  Eirst.     '''     *     * 

Mr.  Justice  Story,  speaking  in  his  commentaries,  of  the  habeas 


§    6  SUSPENSION    OF    THE    WRIT.  875 

corpus  clause  in  the  constitution  says :  "It  is  obvious  that  cases  of 
peculiar  emergency  may  arise,  which  may  justify,  nay,  even  re- 
quire, the  temporary  suspension  of  any  right  to  the  writ.  But 
as  it  has  frequently  happened  in  foreign  countries,  and  even  in 
England,  that  the  writ  has,  upon  various  pretexts  and  occasions, 
been  suspended,  whereby  persons  apprehended  on  suspicion  have 
been  held  for  a  long  term  of  imprisonment,  sometimes  from  de- 
sign, and  sometimes  because  they  were  forgotten,  the  right  to  sus- 
pend it  is  expressly  confined  to  cases  of  rebellion  or  invasion, 
where  the  public  safety  may  require  it.  A  very  just  and  wholesome 
restraint,  which  cuts  down  at  a  blow  a  fruitful  means  of  oppression, 
capable  of  being  abused,  in  bad  times,  to  the  worst  of  purposes. 
Hitherto,  no  suspension  of  the  writ  has  ever  been  authorized  by 
congress,  since  the  establishment  of  the  constitution.  It  would 
seem,  as  the  power  is  given  to  congress  to  suspend  the  writ  of 
habeas  corpus,  in  cases  of  rebellion  or  invasion,  that  the  right  to 
judge  whether  the  exigency  had  arisen  must  exclusively  belong 
to  that  body."    3  Story,  Comm,  Con.  §  1336. 

*  *  *  But  the  documents  before  me  show,  that  the  military 
authority  in  this  case  has  gone  far  beyond  the  mere  suspension  of 
the  privilege  of  the  writ  of  habeas  corpus.  It  has,  by  force  of  arms, 
thrust  aside  the  judicial  authorities  and  officers  to  whom  the  consti- 
tution has  confided  the  power  and  duty  of  interpreting  and  adminis- 
tering the  laws,  and  substituted  a  military  government  in  its  place, 
to  be  administered  and  executed  by  military  officers.  For,  at  the 
time  these  proceedings  were  had  against  John  Merryman,  the  dis- 
trict judge  of  Maryland,  the  commissioner  appointed  under  the 
act  of  Congress,  the  district  attorney  and  the  marshal,  all  resided 
in  the  city  of  Baltimore,  a  few  miles  only  from  the  home  of  the 
prisoner.  Up  to  that  time,  there  had  never  been  the  slightest  resist- 
ance or  obstruction  to  the  process  of  any  court  or  judicial  officer 
of  the  United  States,  in  Maryland,  except  by  the  military  authority. 
And  if  a  military  officer,  or  other  person,  had  reason  to  believe 
that  the  prisoner  had  committed  any  ofifense  against  the  laws  of 
the  United  States,  it  was  his  duty  to  give  information  of  the  fact 
and  the  evidence  to  support  it,  to  the  district  attorney ;  it  would 
then  have  become  the  duty  of  that  officer  to  bring  the  matter  before 
the  district  judge  or  commissioner,  and  if  there  was  sufficient  legal 
evidence  to  justify  his  arrest,  the  judge  or  commissioner  would  have 
issued  his  warrant  to  the  marshal  to  arrest  him  ;  and  upon  the  hearing 
of  the  case,  would  have  held  him  to  bail,  or  committed  him  for  trial 
according  to  the  character  of  the  offence,  as  it  appeared  in  the 
testimony ;  or  would  have  discharged  him  immediately  if  there  was 
not  sufficient  evidence  to  support  the  accusation.  There  was  no 
danger  of  any  obstruction  or  resistance  to  the  action  of  the  civil 
authorities,  and  therefore  no  reason  whatever  for  the  interposition 
of  the  military. 


876  EX    PARTE    MERRYMAN.  §    6 

Yet,  under  these  circumstances,  a  military  officer,  stationed  in 
Pennsylvania,  without  giving  any  information  to  the  district  at- 
torney, and  without  any  application  to  the  judicial  authorities,  as- 
sumes to  himself  the  judicial  power  in  the  district  of  Maryland; 
undertakes  to  decide  what  constitutes  the  crime  of  rebellion  or 
treason;  what  evidence  (if  indeed  he  required  any)  is  sufficient  to 
support  the  accusation  and  justify  the  commitment ;  and  commits 
the  partv,  without  a  hearing,  even  before  himself,  to  close  custody, 
in  a  strongly  garrisoned  fort,  to  be  there  held,  it  would  seem, 
during  the  pleasure  of  those  who  committed  him. 

The  constitution  provides,  as  I  have  before  said,  that  "no  person 
shall  be  deprived  of  life,  liberty  or  property,  without  due  process 
of  law."  It  declares  that  "the  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers  and  efifects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated ;  and  no  warrant  shall  is- 
sue, but  upon  probable  cause,  supported  by  oath  or  affirmation ;  and 
particularly  describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized."  It  provides  that  the  party  accused  shall  be  en- 
titled to  a  speedy  trial  in  a  court  of  justice. 

These  great  and  fundamental  laws,  wh'ch  congress  itself  could  not 
suspend,  have  been  disregarded  and  suspended,  like  the  writ  of 
habeas  corpus,  by  a  military  order,  supported  by  force  of  arms. 
Such  is  the  case  now  before  me,  and  I  can  only  say  that  if  the 
authority  which  the  constitution  has  confided  in  the  judiciary  de- 
partment and  judicial  officers,  may  thus,  upon  any  pretext,  or  under 
any  circumstances,  be  usurped  by  the  military  power,  at  its  discre- 
tion, the  people  of  the  United  States  ar-^  no  longer  livmg  under  a 
government  of  laws  but  every  citizen  holds  life,  liberty  and  prop- 
erty at  the  will  and  pleasure  of  the  army  officer  in  whose  military 
district  he  may  happen  to  be  found. 

In  such  a  case,  my  duty  was  too  plain  to  be  mistaken.  I  have 
exercised  all  the  power  which  the  constitution  and  laws  confer 
upon  me,  but  that  power  has  been  resisted  by  a  force  too  strong 
for  me  to  overcome.  It  is  possible  that  the  officer  who  has  incurred 
this  grave  responsibility  may  have  misunderstood  his  instructions, 
and  exceeded  the  authority  intended  to  be  given  him ;  I  shall,  there- 
fore, order  all  the  proceedings  in  this  case,  with  my  opinion,  to  be 
filed  and  recorded  in  the  circuit  court  of  the  United  States  for  the 
district  of  Mar\land,  and  direct  the  clerk,  to  transmit  a  copy,  under 
seal,  to  the  president  of  the  United  States.  It  will  then  remain 
for  that  high  officer,  in  fulfillment  of  his  constitutional  obligation  "to 
take  care  that  the  laws  be  faithfully  executed,"  to  determine  what 
measures  he  will  take  to  cause  the  civil  process  of  the  United  States 
to  be  recognized  and  respected  and  enforced. 

On  September  24,  1862,  President  TJncoln,  by  proclamation  suspended 
"the  writ  of  habeas  corpus,  in   respect  to  all   persons   arrested   or  who  now 


§    6  SUSl'KNSION     01--     Tllli     WRIT.  877 

or  hereafter  during  the  rebellion  shall  be  imprisoned  in  any  fort,  camp, 
arsenal,  military  prison,  or  other  place  of  confinement,  by  any  military 
authority,  or  by  the  sentence  of  any  court  martial  or  military  commis- 
sion." The  following  January,  the  constitutionality  and  validity  of  this 
proclamation  came  directly  before  the  Supreme  Court  of  Wisconsin,  in 
the  case  of  Kemp,  In  re,  16  Wis.  359  {qui  vide),  and  an  able  and  elaborate 
argument  was  had  on  both  sides.  The  court,  speaking  through  Dixon, 
C.  J.,  in  an  extended  and  carefully  considered  opinion,  based  largely  upon 
the  decision  in  Ex  parte  Merryman,  denied  the  right  of  the  president  of 
the  United  States  to  suspend  the  "writ,"  and  held  the  proclamation  of 
such  suspension  unconstitutional  and  invalid.  The  court,  however,  refused 
to  issue  an  attachment,  on  the  ground  that  it  might  lead  to  an  unfortunate 
collision  with  the  federal  authorities.  A  similar  opinion  was  expressed  in 
the  case  of  McCall  v.  McDowell,  i  Abb.  (U.  S.)  212,  15  Fed.  Cas.  No. 
8,673    (1867). 

On  the  ground  of  the  president's  authority  as  commander  in  chief  of 
the  army  and  navy,  the  United  States  Circuit  Court,  for  the  district  of 
Vermont,  in  the  case  of  Field,  Ex  parte  (1862),  5  Blatch.  (U.  S.)  63,  held 
that  the  proclamation  of  the  president,  of  Sep.  24,  1862,  was  valid  and 
constitutional. 

The  discussion  excited  by  the  proclamation  above  referred  to,  and  the 
decisions  thereunder,  was  doubtless  a  prime  factor,  moving  the  United 
States  Congress  to  pass  the  act  of  March  3,  1863,  conferring  authority  on 
the  president  "whenever,  in  his  judgment,  the  public  safety  may  require 
it,  to  suspend  the  privilege  of  the  writ  of  habeas  corpus,  in  any  case 
throughout  the  United   States." 

On  Sep.  15,  1863,  the  president,  acting  under  the  authority  of  the  act  of 
Congress,  did  issue  a  proclamation  of  suspension  of  the  privilege  of  the  writ. 

Shortly  after,  in  the  case  of  Oliver,  In  re,  17  Wis.  681  (1864),  the  ques- 
tion was  raised  whether  the  act  of  March  3,  1863,  was  not  unconstitu- 
tional, in  that  it  conferred  upon  the  president  power  belonging  exclusively 
to  congress.  The  supreme  court  of  Wisconsin,  speaking  through  Paine, 
J.,  held,  however,  "that  although  the  act  professes  to  confer  on  the  presi- 
dent authority  to  suspend  the  privilege  of  the  writ,  whenever  the  public 
safety,  in  his  judgment,  should  require  it  during  the  present  rebellion,  yet 
that  it  is  itself  an  expression  of  the  legislative  judgment  that  the  time 
has  already  arrived  when  the  public  safety  requires  the  legislature  to  pro- 
vide for  a  suspension,  and  that  it  does  provide  /or  a  suspension,  not  abso- 
lute, but  to  take  effect  according  to  the  judgment  of  the  president,  whether 
the    authority    conferred    should    be    exercised    in    particular    cases    or    not." 

In  the  case  of  Fagan,  In  re,  2  Sprague  (U.  S.),  91,  8  Fed.  Cas.  No.  4,604, 
the  validity  of  the  same  act  and  its  scope  were  brought  before  the  United 
States  District  Court  in  Massachusetts,  and  it  was  held  that  the  phrase 
"privilege  of  the  writ"  meant  the  privilege  of  having  judicial  inquiry  made 
into  the  cause  of  imprisonment,  and  a  discharge  if  the  detention  be  found 
unlawful,  and  that  the  "suspension  of  the  privilege  mentioned  in  the  Presi- 
dent's proclamation  applied  to  all  cases  in  habeas  cort>us  before  any  court, 
where  a  final  order  had  not  been  made  at  the  date  of  the  proclamation." 

In  Griffin  v.  Wilcox  (1863),  21  Ind.  370,  it  was  held  that  neither  the 
president,  nor  the  congress,  of  the  United  States,  can  suspend  the  issue 
of  the  writ  of  habeas  corpus,  by  a  state  court.  A  similar  doctrine  seems 
to  underlie  the   decision   in   People  v.   Gaul    (1865),  44   Barb.    (N.   Y.)    98. 

In  the  case  of  Commonwealth  v.  Frink.  4  Am.  Law  Reg.  N.  S.  700, 
the  supreme  court  of  Pennsylvania  held  that  the  power  of  suspension  of  the 
privilege  of  the  writ,  both  under  the  act  of  1863  and  the  president's  proc- 
lamation, ceased   with   the  termination  of  the  rebellion,  June  29,   1865. 


878  SUSPENSION    OF    THE     WRIT.  §    6 

2.     Suspension  of  the  writ  by  state  governments. 

Most  of  the  states  have  provisft*?is  in  their  constitutions  similar 
to  that  contained  in  the  federal  constitution,  respecting  the  suspension 
of  the  privilege  of  habeas  corpus  in  case  of  rebellion  or  invasion 
and  when  the  public  safety  shall  require  it.  But  in  Alabama,  Mary- 
land, Georgia,  Missouri,  North  Carolina,  Texas,  West  Virginia, 
and  Vermont  such  suspensions  are  directly  prohibited  by  the  state 
constitutions. 

Such  suspensions  of  the  writ  were  ordered  in  Rhode  Island 
during  Dorr's  rebellion,  in  Massachusetts  during  Shay's  rebellion, 
and  in  Idaho  in  1899,  the  supreme  court  held  that  the  proclamation 
of  the  governor  declaring  Shoshone  county  in  a  state  of  insurrection 
and  rebellion,  operated  to  suspend  the  privilege  of  the  writ  in  said 
county.     (In  re  Boyle.  6  Idaho  609.) 


INDEX. 


(References  are  to  pages. 


ACCEPTANCE  OF  OFFICE, 

common  law  duty,  167,  168. 

mandamus  to  compel,  165.  1(!6.  168.   16!»,  17  3. 

ADEQUATE  REMEDY, 

certiorari  barred  by,  545,  546,  548.  580-584. 

definition  of,   195,   196,  583. 

mandamus  barred  by,  104,  17  8,   195.  215,  216.      . 

prohibition  barred  by,   455,   462,   469,   470,   475,   476. 

quo  warranto  barred  by,  27  6. 

what  constitutes,  195,   19(). 

AGE, 

infant,  custody  of  determined  by,   772-774. 

ALTERNATIVE  WRIT, 

affidavit  not  part  of  record,  22  8.  229. 
judge  may  issue  in  court  term  or  vacation,   248. 
mandamus,   essential   elements   of,    228. 
peremptory  writ  distinguished  from,   24  7. 
will  issue  on  failure  to  answer,  245. 

AMOTION, 

power  of  incident   to  corporation,   2  7  6. 
quo  warranto  preceded  by,  27  6. 

ANSWER, 

See  Plea. 
insufficient  regarded   as   none,   245. 
mandamus  will  not  issue  if  sufficient,  245. 

APPEAL, 

certiorari  distinguished  from.  5  7  9,  5  80. 

barred  by,  580. 

lot  barred  by,  5  79. 
hat>c<ts  corpus  will  not  supersede.  719.  763,  782. 
mandamus  will  not  supersede,   71. 
proper  remedy,  when,  68,  75,  82,  107. 

(879) 


880  IXDEX. 

(licfa-ences  are  to  pages.) 

ATTORNEY  GENERAL, 

proper  legal  representative  of  people,  189,  331. 
(/I/O  irarranfo,  allegations  filed  ex  officio,  438. 
may  be  in  general  terms,  430,  431. 
citizen  file  without  consent  of,   344. 
discretion  of  court  in  granting  to,  374. 
filed  by,  when,  337,  409. 
granted  to  redress  public  wrongs,    392. 

power  to  file,   256,   264-266,   297.   298,   300,   337,   400.   401.   40! 
411,  421,  444,  445. 

B 
BAIL, 

courts  exercise  discretion  in  admitting  to,  791. 
power  to  admit  to,  790,  791. 

BOARD  OF  AUDITORS. 

mandamus  granted  against,  44. 

BOARD  OF  COIVEMISSIONERS, 
certiorari  will  lie  against,  549. 

BOARD  OF  SUPERVISORS, 

constitute  equalization  board,  54  6. 

illegal  action,  remedy  against,  12. 

mandamus  not  issue  to,  when,  8. 

roads  in  county,  supervision  by.   11. 
BRIDGES, 

maintenance,  duty  of  county  commissioners,   174. 

BURDEN  OF  PROOF, 

quo   vxirranto,  how  determined,   442. 
sustained  by  defendant,  440,  441. 
by  relator,   443. 
not  by  state.  440,  44  1. 

C 

CANDIDATE. 

disqualilicalion  of  siu'ccssful  rival  not  an  election  of,  404,  405. 

CEMETERY, 

mandamus  to  cuuipcl  permit  fur  burial,   19  8. 

CERTIORARI, 

acquiescence  or  laches  of  relator,  ofTect  of,  592-601. 

acts  reviewable,   leading  cases  of,   5()1,   502. 

adequacy  of  other  remedies,  5  79-584. 

iideqnato  remedy  Imr  to,  545,  546,  548,  580,  582,  583,  584. 

appeal  liar  to,  5H0. 

iK.t  a  bar  to,  579,  582,  583. 

distiiiguislicd    from,    579,   582,   583. 


INDEX. 

{References  are  to  pages.) 

CERTIORARI— Con*i«Med. 

auxiliary  remedy,  granted  as,  005. 

granting  discretionary,  605. 
available  remedy,  wlien,  31,  461,  559,  560. 
character   of   act  determines   whether   writ  should   issue,    5  64. 
circuit  court  power  to  issue,  5  62. 
city  council  amenable  to,  552. 
commissioners  amenable  to,  549,  5  52. 
corporate  existence  not  determined  by,  555. 
corporation  not  amenable  to,  644. 
costs  in,  67  3. 
courts,   discretion   in  granting,    ,585,   587.    589-591,   601,    663. 

which   addressed   to,    541. 
criminal  causes  removed  to  supreme  court  by,  610-612,  654. 
custodian  of  records,  issued  to.  641-643. 
defendant  in,  ex-official   cannot   be,    641. 

notice  to,  654,  655. 

when  state  is  plaintifl',  634-636. 

whom  may  be  made,  566,  640-053. 
deficient  records,  remedy  to  supply,  602,  603. 
definition  of,  537,  538,  545,  556,  620,  666. 
discretion  not  controlled  by,  547. 

of  court  in  granting,  541. 
disinterested  parties  cannot  maintain,  632,  638. 
evidence  de  7iors  record  not  heard  in,  547,  552. 
e.x-officer  not  amenable  to,  665,  666. 
federal  to  state  courts,  will  not  lie,  when,  620,  621. 
final  judgment,   may  issue  before,   662,   663. 

issued  before  or  after,  658-663. 

not  issued  before,  659,  600,  662,  663. 
grounds  for  granting,  546. 
habeas  corpus,  accompanying,  7  02. 

will  not  supersede,  719. 
is  in  nature  of  writ  of  error,   5  39. 
issued  ex  mero  motu,  602. 
inferior  courts,  power  to  issue,  625. 
judgment,  part  of  affirmed,  671-672. 
judicial  acts,  reviewed  by,  552,  557,  5  60,  564. 
judicial,  meaning  of,  552,  561. 
jurisdiction  of  court  to  issue,  606-625. 

errors  in,  corrected  by,  577. 

not  had  if  writ  is  misdirected,  642-653. 
leading  cases  in.  540. 

legislative  acts  not  reviewed  by,  552,  560,  561,  564. 
mandamus  will  not  usurp  province  of,  53. 

operates  as,  when,  50. 
military  proceeding  not  reviewed  by.  617,  618. 


882  INDEX. 

(References  are  to  pages.) 

CERTIORARI— Continued. 

ministerial  acts  not  reviewed  by,  552,  5G0,  561. 

ministerial  officer  not  amenable  to,  644. 

municipal  court,  judgment  revie^A•ed  by,  5  74. 

not  writ  of  right,  551,  584-591,  629. 

object  of,  537-539,  551,  563,  565,  568,  575,  648. 

officers  and  tribunals  amenable  to,  550-5  7  5. 

other  remedies,  effect  of,  575-579. 

parol  return,  record  not  contradicted  by,  664,  665,  667. 

parties  amenable  to,  545,  546,  575. 

not  necessarily  a  court,  561. 

wlio  are,  626. 
petition  must  be  verified,  654. 

Avhat  should  be  included  in,  653. 
plaintiff,   interest   necessary   to   maintain,    627-630,    638. 

joinder  of  parties,  640. 
pleading,  practice  and  procedure  in,  653-673. 
pleadings,  petition  in,  653-654. 

return  in,  654. 

writ  in,  654. 
practice,  general  matters  of,  655-673. 

issued  in  vacation  or  at  chambers,  655-658. 

not  issued  in  vacation  or  at  chambers,  658. 

procedure  to  obtain  writ,   654,   655. 
proceedings  only  removed  by,  568. 
proper  remedy,  when,   12,  39,  45,  52,  53,  544-546,  551,  576,  577. 

to  correct  errors  of  law,  624. 
return,  accompanied  by  records,   654. 

must  be  properly  certified,  654. 

sufficiency  of,  654. 

what  contained  in,  654. 
scope  of,  564,  630. 

special  board,  decisions  reviewed  by,  630. 
state,  plaintiff  in,  when,  633-635. 

sued  out  in  name  of,  461. 
statutory  provision  for,  101,  102,  539,  548,  562. 
supervisors  amenable  to,  552. 

technicality  will  not  defeat  if  properly  directed,  650, 
tribunal,  writ  directed  to,  641,   644. 
verity  of  record,  663-670. 
witne.sses  not  heard  in  proceedings,  547,  552. 
writ,  nature  of,  654. 

properly  authenticated,   654. 

to  whom  directed,  054. 
■vvrif,  of  error  distinguished  from,  545,  629,  659. 


INDEX.  883 

{References  are  to  pages.) 

CHANGE  OF  VENUE, 

granted  in  quo  warranto,  449. 
mandamus  will  lie  to  compel,  80,  81. 
not  lie  to  compel,  78,  89. 

CHAHTER, 

courts  take  judicial  notice  of,  430. 

information  must  allege  substantial  cause  for  forfeiture,  438. 

misuser  or  nonuser  grounds  for  forfeiture,  362,   363. 

performance  of  conditions,  rule  for,  365. 

statutory  provision  for  granting,  364. 

CHILD, 

custody  of  decided  by  habeas  corpus,  764-778. 

CHURCH  TRUSTEES, 

mandamus  directed  to,   1. 

CIRCUIT  COURT, 

certiorari,  po\\er  to  issue,  562. 
county  court  inferior  to,  506. 
jurisdiction  in  qxio  icarranto,  278,  279. 
proliibition,  power  to  issue,  506,  507. 

CITIZEN. 

mandamus,  relator  in,  220. 
quo  warranto  not  filed  by,  395. 
state  has  right  to  sei-vice  of,  170-17". 

CITY  COUNCILS, 

certiorari  will  lie  against,  552. 

mandamus   to  compel   making  asses.sment   required  by   law,    63,    64. 
to  meet  in  convention,  60. 

CIVIL  PROCESS, 

detention  on,  712,  714. 

CODE, 

habeas  corpus,  provisions  for,  707,  708. 
mandamus,  provisions  for  alternative  writ,  5. 

peremptory  writ,   5. 
quo  icarranto,  provisions  in,  4  35,  436. 

COMMISSIONERS, 

certiorari  will  lie  again^^t,   552. 

COMIMON  CARRIERS, 

mandamus,  public  duties  enforced  by,  199,  200. 

to  compel   furnishing  of   transportation   facilities,    203. 
state  may  become,  191. 


884  INDEX. 

{References  are  to  pages.) 

C0:\OI0N  COUNCIL, 

mandamus  will  issue  to,  when,  222. 

COIVDHQN  LAW, 

prohibition,  practice  in,   524-527. 
quo  icarranio,  proceedings  in,  444. 

CO]M]MON\VEALTH, 

See  State. 
COMPLAINT, 

See  INFORMATIo^". 
CONGRESS, 

authorized  to  suspend  habeas  corpus,  874,  8  75. 
corporations  not  established  by,   393. 

CONSTITUTION, 

construction  of  "writ  of  quo  warranto,"  298. 
jurisdiction  conferred  by,  not  abated  by  legislature,  299. 
rule  of  construction  of,  619. 

CONTRACT, 

obligation  of  not  enforced  by  mandamus,   199. 

CON^aCTION, 

forfeiture  proceeded  by,  275. 

CORPORATION, 

certiorari  not  directed  to,  644. 

charter  conditions,  performance  of,  rule  for,  365. 

congress  cannot  establish,  393. 

definition  of,  393. 

equity,  issue  of  stock  certificate  compelled  in,  216,   217. 

exercise  of  franchise  not  granted  is  usurpation  by,  35  8,  359. 

franchise  forfeited  bj^  misuser  or  nonuser,  362,  363. 

information  eo  nomine,  when,  438. 

legislature  may  establish,  393. 

mandamus  against,  to  compel  obedience  of  law,   59. 

issue  of  stock  certificate  not  compelled  by,  217. 
powers  of  usurped,  when,  351,  352. 
quo  warranto  against   officers   barred   by   non-existence,    429,   430. 

against,  statutory  provisions  for,  3  64. 

to  annul  existence,  413. 

to  dissolve  granted  attorney   general,   339. 
state,  legal  control  of,  204. 
use  of  name,  c'xistenc(»  iidniitlcd  by,  420-429. 

CORPORATION  COUNCIL, 
ninndanius  to  control,  1  1  7. 

COUXCH.MAN, 

ninnilaiiMis  (o  coinjicl   acc<'j)laiic(«  of  oHicc,    1  (!8. 


INDEX.  885 

{References  (ire  to  pages.) 

COUNTY. 

pcnpetual  corporation,  228. 

COUNTY  ATTORNEY, 

not  representative  of  county,   516,   517. 
prohibition,  cannot  institute,  517. 

COUNTY  CLERK, 

mandaniua  will  issue  to,  when,  223. 
COUNTY.  COJNOflSSIONERS, 
county  represented  by,  516. 

courts  will  compel  the  maintenance  of  bridges,   17  4,   17  5. 
duty  to  maintain  county  bridges,  17  4. 

mandamus  to  compel  improvement  of  highways,  188,   189. 
enforce  maintenance  of  bridges,   175. 

COUNTY  COURT, 

circuit  court  superior  to,  506,  515. 
constitutional  jurisdiction  of,  454. 
election  returns  not  judicially  revised  by,  455. 
jurisdiction  of,  558,  559. 

in  removal  of  county  seat,  454. 

COUNTY  SEAT, 

removal  of  belongs  to  administrative  department,  454,  455. 
jurisdiction  of  county  court  in,  4  54. 

COUNTY  SUPERINTENDENT, 

mandam\is  will  issue  to,  when,  9. 
COURTS, 

acceptance  of  office  compelled  by,   10  8,   169. 
all  pleas  must  be  disposed  of  by,  439,  440. 
acts  of  receiver  are  acts  of,  519,  520. 
bail,  power  to  admit  to,  790,  791. 

purpose  soTight  in  fixing  amount  of,  800. 
certiorari,  discretion  in  granting,  585,  587,  589-591,  663. 
common  nuisances,  mandamus  to  remove,  27. 
corrupt   contract,  execution  not  assisted  by,  38. 
custodj'  of  infants,  rule  for  assigning,  772,  773. 
discretion,  guides  for  in  talcing  bail,  7  9  8. 

in  admitting  to  bail,  791. 

not  ended  by  issue  of  quo  irarranlo,  403. 

not  exercised  in  quo  warranto,  when,  300. 

of  executive  officers  not  controlled  by,  505. 

to  issue  eertiorari,  541,  561,  585-587.  589-591.  601.  663. 
habeas  corpvs,  718,  732,  779,  7  81. 
mandamus,  9,   10. 


886  INDEX. 

{References  are  to  pages.) 

COURT?^— Continued. 

pioiiibition.  455.  462,  403.  4G5,  407.  509,  518. 

contra,  455,  464,  465. 
quo   icarranto,   250,   251,   288,   289,   382,   401,   402,   408,   446. 
to  attorney  general,  37  4. 
to  private  persons,  313. 
to  state,  315. 
execution  of  judgment,  manner  regulated  by.  83. 

existence  of  foreign  corporations  not  affected  by  judgment  of,   373. 
habeas  coi'pus,  power  to  enforce  obedience.    855-864. 

prerogative  not  taken  away  unless  mentioned,   751. 
jurisdiction  in  quo  ivarranio  not  destroyed  by  statute,  272. 
lack  of  nullifies  judgment.   75  6. 
to  issue  lutheas  corptis,   730-755. 
mandamus,   cannot  refuse  when   right   to   is   established,    38,   39. 
circumstances  of  case  controlling,  62. 
commission  of  crime  not  compelled  by,   29. 
common   nuisances   removed   by.    27. 
discretion  to  grant.   9,    10.   21.   60. 
granted  to  enforce  execution  of  laws,   62. 
in  anticipation  of  failure  to  perform  duty,   62.  64. 
issued  against   inferior  judge,   when,   61. 
jurisdiction  in,  how   determined,    5. 

which   have,   6. 
ought  to  assist  by,  when,   2.    14,    19.   35. 
reason  for  granting,   24.   59. 
to  enforce  public  duties  of   railroads.    192. 
materiality  of  franchise  provisions  not  adjudged  by,   366. 
ministerial  acts,  controlled  by.   149. 
of   governor   controlled   by.    149. 
of  public  officers  controlled  by,   141,   142. 
prohibition,   proceeding  between,   505. 

relation  of  inferior  and  superior.    505. 
resorted  to.   when,   495. 
provinc*e  of.   HO."), 
public  oHiccr.s  compelled  to  maintain  highways.   190,   191. 

nature  of  duties  determined  by,    14  8,    149. 
cpialifications  of  legislators  not  adjudged  by,  337. 
«iu(t  ivnrranio  not  granted  if  evicU'nce  conllicts,  291,  292. 

jurisdiction  ti>  oust.  272.  27.'!. 
rights  of  jxTsdii  linldiiig  ofVicc  il<'lciiiiincd  by,  338-341. 
supcriiiti'iiiliMicc   not    exercised    mcr    mayor,    505. 


INDEX.  887 

(References  are  to  pages.) 

COURT  OF  KING'S  BENCH, 

See  Supreme  Court. 
inferior  courts  subordinate  to,  G06,  607,  009-611. 
jurisdiction,  extent  of,  609,  610. 

CRIMINAL  COURT, 

habeas  corpus,  power  to  issue,  754,  755. 

CUSTODY, 

infant  child  given  to  parent,  7  64,  770. 

D 
DAMAGES, 

awarded   for   failure  to  audit  account,   248. 
recovered  for   false   returns   to  mandamus,   246,   247. 

DEFENDANT, 

answer  to  summons,  waiver  of  objection  to  form,  436. 
certiorari,  640-653. 

ex-official  cannot  be,  641. 
quo  warranto,  what  must  be  shown  by,   267,  431,   439-441. 

DEPARTMENT  OF  GOVERNMENT, 

functions  not  usurped  by   co-ordinate  department,    133,    134,    153,    154. 

DISCRETION, 

certiorari  will   not  lie  to  control,   547. 
courts    exercise    in    admitting   to   bail,    7  91. 

issuing   certiorari,    541,    585-587,    591,    601,    663. 
habeas  corpus,  718,  732,  779-781. 
mandamus,   9,   10. 

prohibition.  455,  462,  465,  467,  518. 
quo  icarranto,  286-289. 
exercised  only  when  defects  are  apparent,   4  66.   467.      > 
infant  attains  age  of,  774 

legal    not  arbitrary,  108,  109,  563,  585,  588. 
mandamus  will  control  abuse  of,   116. 

will  not  control,   55.    104,    105,    107,   108,    110,    119,    120,    153. 
prohibition,  not  exercised  in  granting,  when,  455,  464,  465. 

DISTRICT  ATTORNEY, 

quo  icarranto,  power  to  file,  413. 

E 
EQUALIZATION   BOARD, 

board  of  supervisors  constitute,  546. 
title  to  office  not  determined  by.   327. 

EQUITY, 

legal  remedy  not  superceded  by,  331. 


888  mDEX. 

{References  are  to  pages.) 
EVIDENCE, 

de  hars  record  not  heard  in  certiorari,  54  7,   552. 

EXCESSR'E  BAIL, 
meaning  of.  7  98. 
what  constitutes.   7S9,   800. 

EXECI^TIVE  OFFICER, 

niandannis,   to  compel   discharge  of  duties.    151. 

EXTRADITION. 

constitutional    provisions    for,    818-829. 

criminals  ^vithin  purview  of  law,   822,   823. 

governor,  discretion  in  honoring  requisition   for,    818-822. 

habeas  corpus  practice  in,   739-750. 

interstate,   federal  government  cannot  enforce.    819. 

jurisdiction  in.  8  30. 

state  courts,  power  to   issue   habeas  corpus  in,    739-7  50. 

FATHER,  F 

custody  of  infant,  gross  immorality  extinguishes  right  to,  7  7  5,  7  76. 

guardian   of   child,    771,    778. 

infant,  natural  guardian  of,   7  71,   7  7  8. 

FEDERAL  COURTS, 

habeas  corpus,  power  to  issue,  732-739. 

will  issue,  when,   750. 
jurisdiction  in  mandamus,  when,  99,   100. 

prescribed   by    constitution    and   congress,    616,    617. 
state  courts,  no  control  over,  7  82. 
FOREIGN  CORPORATION, 

existence  not  efTectod  by  judgments   of  court,   373. 
quo   warranto   will    lie  to  oust,    3  7  3. 

FORFEITURE, 

conviction  must  precede,   27  5. 
mi.suser  must  be   sufficient  to  jii.stify,   369. 
trivial   offense   will   not   create,   275. 
vacancy   created   by,    27  6. 

FRANCHISE. 

acceptance   implies   promise   to   j)erform,    366. 

conditions    on    which    granted,    364. 

definition  of,  204.  269,  320,  321,  357,  370,  380,  393. 

diversity  of,   3  80. 

granted,  to  whom,   35  7. 

legislature,  authority  to  grant,   niiisi    he  cdiist  itut  ional.   360,   361. 

rnisusc^r  necessary  If)  warrant,  fditcit  urc,  :(7". 

neglect  to  pr^rform   coiidit  imi-,   of    is    traml    iiiion    stat^',    366. 

power   to  grant.   357. 

usurpation    of   i.s   public  wrong,    331. 


INDEX.  889 

(Refei-ences  are  to  pages.) 

FUGITIVE    FROM    JUSTICE, 

meaning  of  term,   822,   823,   829,   831. 

G 

GAS  COMPANY, 

mandamus   to   compel   furnishing   gas,    19  8. 

GOVERNOR, 

civil  officer,  337. 

court  has  power  to  determine  right  to  office,   338-341. 
issuance  of  commissioners  not  restrained  by  prohibition,  4  83. 
mandamus  against,  when,   12  8,   13  8. 

will  not  lie  to  control,   128,   133,   134,   151. 
ministerial   acts   subject  to  control   of   courts,    149. 
presumptions  in  favor  of,   149,   150. 
quo  icarranto  will  lie  against,  334,  335. 

GUARDIAN, 

•custody  of  infant.- gross  immorality  extinguishes  right  to,  775,   7  7  6. 
discretion  to  educate  ward,  777. 

GUARDIAN  for;  NURTURE, 

ceases  when  infant  is  fourteen  years,    7  74. 
infant,  ward   of  father,    7  71. 

H 
HABEAS  CORPUS, 

aliens  or  citizens  entitled  to,   839. 

appeal   not   superceded   by,    719,    763,    782. 

applies  to  all   illegal   confinement,    7  65. 

bail,   release  on,   secured   by,    789-802. 

body  of  detained  person  must  be  produced,  865-870. 

certiorari  accompanied  by,  702. 

not   superceded   by,    719. 
civil   proceeding,    7  25-7  2  7. 
civil  process,  detention  on,  712-714. 
code,   provisions  for,   7  07,   708. 
common  law  origin,  7  5  3. 

constitutionality  of  law  tested,  by,    7  60-7  64. 
contempt   cases,    77  8,    7  89. 
court  of  competent  jurisdiction,   judgment  not  investigated   in,   759. 

issuing,   7  3  0-755. 
custody  of  children,   7  64-7  7  8. 

of  infant  child  given  to  parent  by,  7  64-7  70. 

of   infants,   rule  for,   772-773. 
defendant  in,   84  3. 
definition   and   general   principles,    681-730. 

origin,    history    of,    681-691. 


890  INDEX. 

[References  are  to  pages.) 

HABEAS  CORPUS— Cow tm«erf. 

discretion  in  issuing,  714,  725,  732,  77  9,  781. 
errors    not    re^^ewed    by,    695-697. 
errors  of  jurisdiction  only  reviewable  by,   719. 
excessive   bail   remedied  by,    802. 
extradition,   abuse  of,  remedied   by,   838. 

not  remedied  by,  832-837. 
extradition  cases,  802-838. 
extradition,   practice  in,    739-750. 
federal  courts,  power  to  issue,   7  32-7  39. 

will  issue,  when,   750. 
function   of   writ,    755. 
history,  origin,  definition  of,   681-691. 
laches  of  prosecutor  grounds  for  granting,   796,   797. 
lack  or  excess  of  jurisdiction  in  court  committing,   755-7  60. 
imprisonment  in  contravention  of  law   remedied  by,   763. 
inquisition    in   name   of    state^    7  5  3. 
issue  on  probable  cause  but  not  of  course,   846. 
jurisdiction  in   and  scope  of,   7  55-83  8. 
justices  of  supreme  court,  power  to  issue,   750. 
obedience  enforced,  855-864. 
object  of,   G90,   790,   842. 
origin,  history,  definition  of,   681-691. 
moral    restraint   not   applicable,    703,    704. 
paramount  over  all  other  writs,   098-700. 
parties   to,    838-844. 

petitioner,    83  8-843. 
pei-sons  discharged  on  bail  not  entitled  to.  711. 
petition.  844-848. 

l)y  stranger,  840.  841. 

by  third  party,   839.   840. 

must  be  verified,  845,   870. 

must    show   probable   cause,    717,    723. 

nuist  state  facts  of  illegal  detention,  844,   845. 

not  proper  to  demur  to.   7  60. 

omission   of   name   not    irregular.    846. 

requisites  of,   716,    848. 
petitioner  and  person  restrained,  legal   relation  not  necessary,   846. 

must  show   prima  facie   case,    779,    780. 
ple^idiiig,  practice  and  procedure  in,  844-878. 
practice,   particular   matlers   of,    871. 
prima  facie  casf.   pet  i1  loner   uiusl  show,   770,   780. 
proijor  function  of.   (iH9-(i!)H. 
proper    rciiKMly.    wlicii.    7  6  6. 
quest  idiiH   of    fact    not    reviewed    by,    727-730. 
71/0   ndrninlo  not  superseded  by,   695. 


ESTDEX.  891 

(References  are  to  pages.) 

HABEAS  CORPUS— Continued. 
relator's  right  to,   690,   691. 

remedy  to  release  from  illegal  sentence,   692,   693. 
restoration  of  personal  liberty    object  of,  7  63. 
restraint,  degrees  necessary   to  warrant,   700-711. 
return,   attachment   for  contempt   if  false,    871. 

evasive,   penalty,    855-864. 

general  form  of,   864. 

response  to  writ  not  answer  to  application,  850. 

statutory  provisions  for,  854. 

to   whom  directed,   870,    871. 

what   constitutes,   849-854. 
rule  to  show  cause,  848. 

state  courts'  power  to  issue  in  extradition  cases,   739-750,   755. 
statutorA'^  provisions  for,  7  32,  733. 

regulations  of,   871. 
supreme  court,  power  to  issue,  750. 
suspension,  constitutional  provision  for,   87  3. 

by  congress   alone  authorized,    874,    87  8. 

by  federal  government,   871-877. 

not  binding  on   state   government,   87  7. 

by  military  officers  not  authorized,   873-875. 

by  president  authorized,  87  7. 
not  authorized,   87  3. 

by  state  government,  878. 
United  States  supreme  court,  authority  to  issue,   7  30. 
writ  of  error  not  superceded  by,   695,   698,   702,  719,   763,   782. 
writ  of  right,  717,  779,  780. 
not  writ  of  course,   717,   724, 

I 

ILLEGITIMATE  CHILD, 

custody  of,  7  74. 

IIMPRISONMENT, 

definition  of,   7  65. 

INDIVIDUALS, 

corporate  pgwers  not  lawfully  exercised  by,   351,   352. 
quo  loarranto  will  lie  against,  when,   350. 

IISTFANT, 

age  of  nurture,  771. 

custody,   gross    immorality,    effect    of,    775,    776. 

modern  practice,  778. 

rule  in  habeas  corpus,  772,  77  3. 

under  seven  years,  771. 


892  INDEX. 

(References  are  to  pages.) 

IKFA^T— Continued.     . 

discretion,  age  of,   7  74. 
father   natural   guardian   of,    7  71,    778. 
haheas  corpus  when  under  seven  years,   772. 
mother,  custody  of,  771,  774,  778. 
parent   natural   guardian   of,    767. 

INFERIOR    COURTS, 

appeal  proper  remedy  to  review  judgment  of,  82. 
certiorari  issued  by,   625-653. 
definition  of,   569,   5  70. 

discretion  not  controlled  by  mandamus,  52-54,  72,  73,  82,  100,  104.  105, 
107.   108. 

by  superior  court,  515. 
errors  in  judgment  not  corrected  by  mandamus.   105. 

corrected  by  certiorari  or  appeal,   85. 
judgment  not  controlled  by  mandamus,    13. 
mandamus,   actions   not   reviewed    by,    32. 
to  compel  action,   52,    53,    104. 

performance  of  duty,   52^   53,   59,   72,   73. 
reinstatement  of  cause,  77. 
discretion  not  controlled  by,   104,   105.    107. 
exercise    of    appellate    jurisdiction,    91. 
not  proper  remedy  to  review  judgments  of,  82. 
ministerial  duties,  mandamus  to  compel   performance  of,    85,   86,   95-97, 

100. 
question  of  jurisdiction  must  be  determined  by,  493,  512. 

submitted  to,    520. 
supreme  court,  superintending  control  of.  5  69. 

INFORMATION, 

against  corporation  eo   nomine,   when,    43  8. 

stock-holders,  when,  438. 
allegations  filed  ex-ofpcio  by  attorney-general,   438. 

what  mast  include,   267,   268. 
amendments   before   and   at   trial,    4  38. 
autliority  for  granting  in  71/0  warranto,  251. 
criminal  in  form,  civil  in  nature,  442. 

forfeiture  of  charter,  .substantial  cause  must  Ix;  alleged,  438. 
rules  governing  pleadings   in  quo  warranto,   442. 

IN.IUNCTIOX, 

conrt  having  authority  to  grant,   459. 
olTicial    fiiiiclion  not  restrained  by.   331. 
petition   for  in.sufficient,   150. 
prohibition    distinguishrnl    fnmi,     I.SH. 
proper  r<'medy.  when,  324,  325,  37  1. 
stato  grants,  when,  371. 


INDEX  893 


{References  are  to  pages.) 

INSURANCE  COMMISSIONER. 

office  ministerial,  37  4. 

IRREGULARITY, 

definition    of,    846. 

waiver  of,  what  constitutes,  846,   847. 

J 

JUDGMENT, 

nullity  when  void,  782. 

JUDICIAL, 

meaning  of   in  certiorari,   552,   56 L 

JUDICIAL  ACTS, 

certiorari  will  lie  to  review,  552,  557,  56 0,  564. 

definition  of,  557. 

legislative  acts  distinguished  from,  565. 

not  controlled  by  mandamus,   46-49. 

JURISDICTION, 

inferior  court  must  determine  question  of,   493. 
supreme   court,   extent   of,    609,    610. 

JURY. 

facts  in   quo   warranto  tried  by,   449. 

JUSTICE, 

mandamus  to  prevent  failure  of,   34,   35,   39. 

JUSTICES  OF  SUPREME  COURT, 
habeas  corpus  power  to  issue,  750. 

L 

LACHES, 

mandamus,  grounds  for  refusal,  40,  89. 

degree  necessary  for  refusal,  07. 
quo   warranto   barred  by,    288. 

LAW, 

punishment  before   trial  not  object  of,   800. 

LEGISLATURE, 

corporations  established  by,  393. 

jurisdiction  conferred  by  constitution  not  abated  by,  20fl. 

materiality  of  franchise,  provisions  adjudged  by,  360. 

power  of  taxation  belongs  to,  180. 

public  highways,  power  over,  200. 

public  use  determined  by,  190. 

qualifications   of    members   adjudged   by,    337. 


894  INDEX. 

I  References  are  to  pages.) 

LEGISLATR'E  ACTS, 

certiorari  will  not  lie  to  review,  552,  560.  561,  564. 
judicial  acts  distinguished  from,  565. 

LEGISLATIVE  OFFICERS, 

discretion  not  controlled  by  niandanuis.   153. 
mandamus  will  not  lie  against,  15  3,  154. 

:m 

MANDAiirS, 

acceptance  of  office  compelled  by.    165.   166.   108.   160. 
acts  involving  "preliminary  question"  controlled.  47.  4  8. 

of  judicial  nature  not  controlled.   46-49. 

of  ministerial  nature  controlled.  46-49. 
adequate   legal   remedy  bar  to.    11-15.    18-21.    27.    32.    33.    36.    39,    53, 
56-60,  66,  80,  87,  88.  104,   107,  108,  141,  149.  150.  160,  195,  196, 
205,  206,  215.  216. 
affidavit  for  alternative  writ  not  part  of  record.  228.  229. 
alternative  writ,  elements  of,   228. 

amotion  from  corporation  corrected  by.   203.   20G.   207.   208. 
anticipation  of  refusal  ground  to  issue,   62,   64. 

not  ground  to  issiie,  44,  57. 
appeal  bar  to,  676. 

appellate  jurisdiction  exercised  by  supreme  court.  91. 
application   for.   by  whom,    117.    118. 
approval  of  bonds  not  compelled  by.   104.   105.   106. 
auditing  and  payment  of  claims  conipelled  by.  54.  55.   175. 
bill   of  exceptions,   judge  compelled  to  sign,   89-92. 

not   at   subsequent   term,    89. 
books  and  paraphernalia  of  office  obtained  by.  162.  163.  164.  178. 
books    and    records,    right    to    inspect    enforced.    209. 
cannot  interpose  in  the  progress  of  a   case.   71.   72.  . 
cemeterA-   compelled   to   permit   burial.    198. 
certiorari,   time   limit   not  extended   by.    39. 
change  of  venue  compelled  by.   80,   87. 

granting   not   compelled.    7  8.    7  9. 
character  of  act  determined,    104. 
church  trustees,  directed  to,   1. 
circumstances  of  caso  controlling,  62. 
city  council  compelled  to  nuike  assessments.  63,  64, 

meet   in    convention,    60. 
civil  action,  generally,  7  4. 
clerk  of  court  not  controlled  by.    105. 
commission  of  crime  not  compelled.   29. 
pommon  carriers'  public  duty  enforced  by.   199.  200. 


INDEX.  895 

(References  are  lo  [Ku/es.) 

MLASDA^K'S^Continucd. 

common  nuisance  removed  by,  27. 

constitutional  provision  for,  109. 

contract  obligation  not  enforced,   '.]?>.  36,    199.  • 

corporation  council  controlled  by,   117. 

corporations,   public  duties  enforced.    201. 

county  commissioners  amenable  to,   17  5. 

improvement  of  highways,  188,   189. 
county  superintendent,  issued  to,  9. 
courts   cannot   refuse   when    right   to   writ    is    establishetl.    3  8,    39. 

compelled  to  act,   decision  not   controlled,   69,   70. 

reasons    for    granting,    59,    60. 

rule   for  issuing,    14,   21,    35,    60. 
de  f'lcto  officer  not  ousted  by,   156,   15  7. 
defective  writ,  effect  of,  150. 
defendant  in  proceedings,  222. 

person  charged  with  performance,  224. 
defendant,    conduct    strongly   indicating   refusal,    44,    45. 
definition  of,  1,  2,  34,  35,  66,  90,  108,  215,  246. 
demand   and  refusal  necessary  to  authorize,   42. 
demand  unnecessary  if  public  interests  are  involved,  4  4.   17  3. 
differentiated  from  other  extraordinary  remedies,   4  8  7. 
discretion,  abuse  of  controlled,   116. 

not  controlled  by,  45,   55,   100,    104,   105,   141.    153. 

when   issuing,   9,   21. 
dismissal   or  reinstatement  of  causes,   7  5-7  7. 
duty  of  public  officer  must  be  clear,   121. 
election   matters,  statutory   provisions,    50. 
enforcement  of  laws,  prevention  of  injustice,  object  of.  5  9. 
equitable  remedy  not  a  bar  to,   23,   25.   107. 
equity,  pendency  of  suit  should  stay,   23. 
erroneous  judicial  action  not  corrected  by,   105. 
errors  in  discretion  not  corrected  by,   107.    108. 
execution  of  judgment  not  regulated  by.    83. 

of  laws,  controlling  consideration,   62. 
executive   officers    amenable    to,    13  6,    13  7.    151. 
extraordinary  remedy.   80,   87,   114, 
fault  of  relator  bar  to,  39. 

federal  courts  have  jurisdiction,  when.   99.    100. 
gas  company  compelled  to  furnish  gas,    198. 
governor   amenable   to,    128,    13  8. 

not  am.enable  to,   128.   133,   134,   151. 

compelled  to  perform  mini-sterial  duties,   151. 
grounds  for  refusal  of,   20.   / 
history    of    development.    167.  '     \ 

impossible  acts  not  commanded,   28,  \ 

) 


896  INDEX. 

{References  are  to  pages.) 

MANDAMUS— Contiyiiied. 

inferior  courts,  discretion  not   controlled,    13,   52-54,   72,   7  3.   82,   93-97, 
100,   104,   105,    108. 

judgments  not  reviewed,  32,   71,   82. 

set  in  motion  by,  52.  53,  72,  73,  93-97,   104,   107. 
inferior  judge  amenable  to,    when,  CI. 
inferior  public  officers  amenable  to,    131,    134. 
interests  of  relator  determine  right  to,  219,  220,  221. 
is  in  nature  of  procedendo,  675,  676. 
issues  ex  debito  jusiitiae,  when.  10. 
issue  of  stock  certificate  not  compelled  by,   217. 
justice  of  peace  compelled  to  grant  appeal,   85,   86. 
laches  good  ground  for  refusal  of,  40,  67,  89. 
legislative  officers  amenable  to,    153,    154. 

not  amenable  to,   153,   154. 
members  admitted  to  corporate  bodies  by,   217. 
ministerial  acts  only  controlled  by.   142,   153,   154. 
ministerial   duty,   enfoived  by.    104,    110. 
modern    practice,    229. 
municipal  taxation  compelled  by.   179. 
municipal    corporation    compelled    to    pay    debts,    183. 
to   satisfy  judgment,    187. 
not  to  exceed  tax  rate  limit,   187. 
nature  of  writ.  2,   3. 

England,  218. 

United  States,  218. 
neither  action  at  law  nor  suit  in  equity,   66. 
not  appellate  proceedings,   52. 
not  civil   action   under   code,    66,    67. 
not  issued  when  fruitless  or  nugatory,  28-30. 
not  proper  remedy,  A\hen,   12,   32. 

not  restricted  to  enforcement  of  statutorj-  duties,  23,  24. 
oath  of  office,  adminij^tration   of  compelled,    161,    162. 
object  of,   2.    14.   93. 

ofliccrs  not  public  not  controlled,   113,  114. 
official  duty  compelled  ))y,   164,   168,   169. 
operates  as  certiorari,  when,  50. 
original  suit  rather  than  final  execution,   6. 
other  legal   remedy,  cflect  of,   22. 

must  bo  adequate,    107. 
ought  to  bo  issued,  when,   15.   18,   19,  24,  26,  39. 
parties   amenable    to.    17(i,    17  7,    215,    24  6. 

to    proceedings,    2  18,    219. 
plaint  ill.   2  19.  „y_ 

.»nipell 

/ 


INDEX.  807 

(  References  are  to  pages. ) 

MAJVDAMUS— Con  tinned. 

payment  of  claims  compelled  by,   17  6,  177,   17  8,   179. 
peremptory  distinguished  from  alternative,   247. 

not  varj'  alternative,  198. 
persons  restored  to  office,  156. 
petition,  essential  elements  of,  227. 

ex  parte  application,  227. 
pleading,  practice,  procedure,   226-248. 

prerogative   nature   not   recognized   in   United   States,    218,    219. 
president,  not  amenable  to,    121,   12  3. 
private  corporation   amenable  to,    189,    198,   200. 
private  persons  entitled  to,   21. 

enforcement  of  public  duty,   195. 
proceedings  in,  how  instituted,   218. 
procedendo,  form  of,   675. 
prohibition  contrasted  from,  471,  472. 
proper   functions   of,   232. 
proper   mode   of   procedure,    244. 

proper  remedy,  when,    15,   35,   60,   93,    107,    153,    158,    159,    161,    178, 
198,   226. 

how  determined,   176. 

to  enforce  payment  of  judgment,   184. 
properly  issues  to  a  justice,  when,  31. 
propriety  of  determined  by  nature  of  act,  124. 

inadequacy   of   other   remedies,    25. 
province   and   scope,    53. 

public   and   private   rights   protected   by,    218. 
public  duty  enforced  by,  19  8. 

of  private  corporation  enforced,  189,   199. 
public  officers  amenable  to,  25,   100,  101,  109,   195. 

discretion  not  controlled,   110-112,   119,   120. 

compelled  to  perform  duty,   113,   114.    118,   119,   219,   220. 
omissions  of  predecessor,   223. 
public   improvements    compelled,    187. 
public  interest  requiring  immediate  remedy,   27. 
public  trust  enforced  by,    192,    193. 
purpose  of,  60,  90,  177. 

gwa,st-judicial  actions  not  controlled  by,   105,    106,    119. 
quo  warranto  distinguished  from,    158,   159. 
railroads  compelled  to  complete  construction,  62,  63. 
construct  crossings  by,    198. 
establish  stations  by,   198. 
increase   trains   by,    198. 
perform   public  duties,    192. 
stop   trains   by,    19  8. 


898  INDEX. 

(References  are  to  pages.) 

ilAJSfDAMUS— Con^mwec?. 

relator,   show   clear   legal    right,    G.    14.    15,    52,    126. 
no   adequate  remedy,   54,    5  5,    87. 

remedy    will    apply,    when,    159. 

removal  of  cause,  state  to  federal   courts,   !)8. 

renewal  of  application  for,   68. 

rule  for  granting,  21,  100,   110.   119,   120. 

scope  and  province  of,    107.    , 

secretary  of  state  amenable  to,    123,    124.    12  7. 

should   be   refused,   when,    9,    10,    16. 

Speaker  of   House   not  amenable   to,    15  3,    154. 

state,  grounds  of  right  to,   194. 

not  precluded  by  private  remedies,    19  3. 
sued  out  in  name  of,   219,   461. 

statute   of   Anne,    226,    303,    304. 

statute   of   limitation,   eflfect   of,    64.    65. 

statutory   provision   for,    19,   34,    89-91. 

stock-holder,  right  to  inspect  book  enforced,  210-214. 

superior  to  inferior   courts,   examples   of.   93,   94,   97. 

supplementary  remedy,  67  5. 

supreme  court,  jurisdiction  to  issue,   91,   511. 

telephone  company  compelled  to  furnish  service  by,    19  8. 

title  to  office  determined  by,   156,   157,   161. 

transfer  of  cause,  compelled  by,  96. 

unavailable   as   a   remedy,   when,    15,    16. 

unnecessary   delay   prevented  by,    103. 

uses  of  defined,    104. 

valid  judgment  necessary  to  obtain,  187. 

water    company    compelled    to    supply    water    by,    198. 

writ  of  error  distinguished  from,   60. 

writ  of  error  and  appeal  not  superceded  liv.  53.   71. 
MAYOR, 

acts  not  judicial,  505. 

MILITARY  OFFICER, 

suspension  of  habeas  mrpus  not  authorized,  S 7 3-8 7  5. 

MINISTERIAL   ACTS, 

certiorari  will  not  lie  to  review,   552,   560,   561. 
controlled  by  mandamus,   46,   48,  49,    141,    149. 
courts  have  power  to  determine.   148.  149. 
definition  of,   46.   47,    110.    111.    141. 
mandamus  will  enforce,   104,    110,    111. 
prohibition  will   not  restrain,  483. 

MINISTERIAL  OFFICE, 

firtiorari  will   not  lie  against,   644. 
jiroliibition  will  not  issue  to,  512,  513. 


INDEX.  899 

{References  are  to  pages.) 
MISCONDUCT, 

forfeiture  by,  how  determined,  274. 
MISUSER, 

what  constitutes,   370. 

MOTHER, 

custody  of  infant,  gross  immorality  bar  to,  7  7.'),  7  76. 
infant,  remain  in  custody  of,  771,  77  8. 

MUNICIPAL  CORPORATION, 

charter  for  benefit  of  people  not  officers,  306,  307. 

not  forfeited  by  misconduct  of  officers,   306,   307.  ' 

functions  exercised  by,  nature  of,  564. 
instrumentalities  of  the  state,  181. 

legal  existence  enquired  into  by  courts,  when,  319-322. 
mandamus   against,    173. 

mandamus  to  compel  payment  of  debt,   181,   182,   183. 
satisfaction  of  judg-ment,   187. 

will  not  compel  tax  rate  limits,  187. 
power   of  taxation   delegated   to,    181,    182,    183. 
power  to  control  public  highways  delegated  by  state  to.   200. 
power  to  levy  tax  is  implied,  when,   181,   182,   183. 
quo  warranto  to  determine  legal  existence  of,  308,  309,   310. 

will  not  lie  against.   306,   307,   308. 
statutory  provision   for   levying  taxes,    186. 
things  necessary  to  provide  for,   181. 
usurpation  to  exercise   authority  outside   boundaries,   322,    323. 

MUNICIPAL  COURTS, 

judgments   reviewed   by   certiorari.    5  74. 

MUNICIPAL  OFFICERS, 
mandamus   to,    17  3. 

N 

NEW  TRIAL, 

awarded  in  quo   warranto,  when,  449. 

NURTURE, 

definition  of,    771.  ■     . 

0 

OFFICE, 

acceptance  of  a  legal  duty,    168,   169. 

OFFICERS, 

mandamus  to  compel  performance  of  duty,    100,    101- 


■\ 


900  INDEX. 

(References  are  to  pages.) 

P 

PAKENT, 

natural   guardian   of   infant   child,    7  67. 

PAROL  RETURN, 

certiorari,    record   not   contradicted   by,    664,    665,    667. 

PEOPLE, 

See    State. 
sovereign  power  in  a  republic,   171.   17  2,   17  3. 

PEREJIPTORY  WRIT, 

alternative  distinguished  from,   247. 

PETITION, 

See    Information. 
certiorari,  must  be  verified,    654. 

what   should  include,    653. 

ex  parte  hearing,  654. 
essential  elements  of  in  mandamus,  227,  244. 
habeas  corpus  must  show  probable  cause,  716,  717,  723. 
ex  parte,  in  mandamus,  227,  244. 
must  show  legal  right  to  mandamus,   6,    8. 

PLAINTIFF, 

either  of  contending  parties  may  be  in  prohibition,  519. 

either  party  or  a  stranger  to  action   may  be   in   prohibition,    515,   516. 

grounds  for  right  to  prohibition,  499. 

interest  required  in  prohibition,  514-519. 

prohibition,   either  of   contending  party  may  be,    519. 

PLEADING, 

quo  icarranto,  rules  applicable,  4  3  3. 
PLE.ADINO  i\ND  PRACTICE, 

mandamus  will  not  interfere  in  matters  of,   103. 

PLEA, 

court  must  dispose  of,  439,  440. 

effect  of  in  quo  warranto,  439. 

rules  governing  pleadings  in  quo  ivarravto,   442. 

what  should  allege  in   quo   uarrnnto,   439. 

Pf/I^TCE  COURTS, 

dpcisionH  may  bo  appealed  from,  .')7  5. 

PIIESIDENT, 

authorized  to  suspend  linhras  corpus,  S7  7. 

contra.   HT.\. 

mnnddiniiH   will    no(,   lin   agninst,    121,    123. 


INDEX.  001 

{References  arc  to  pages.) 

PRESIDENTIAL  ELECTOR. 
not  state  officer,  345. 
quo  icarrunto  not  lie  to  test  title,  345. 

PRIVATE  CORPORATION, 

act  presumed  regvilar,  44  3. 

manchuiuis  will    lie  against,    when,    ISD,    200. 

enforce  public  duty  of,   198. 
necessary  elements  of,    189,    190. 
public  interest  in,   189,    190. 
quo  warranto  will  lie  against,  when,  350,  351. 
right  to  construct  public  highways,   state   grants,    191,    19  2. 

PROCEDENDO, 

common   law  writ,    G74. 
definition    of.    674. 
form  of  mandamus,  075. 
modern    practice,    in,    680. 
properly   accorded,   when,    675. 

PROHIBITION, 

act  of  William  IV,   528. 

adequate  remedy  bar  to,  455,  462,  469,  470,   475,  476.  -— - 

allowance  of  not  discretionary,  when,  455,  464,  405. 

answer  or  return.   536. 

applicable  only  to  judicial  acts,  482-490. 

awarded  before  and  after  sentence,   509. 

cause  ended,  remedy  will  not  lie,   477-479,   481. 

circumstances  necessary  to  justify,  459,  499.  —■ — 

class  of  cases  to  which  writ  is  applicable,  454.___^. — ' 

common  law  practice,  524-527. 

common  law  writ,  459-462. 

concurrent  remedy  not  bar  to,  45  5,  471. 

constitutional   right,  when,   4  55.  « 

counterpart  of  mandamus,  45  8. 

court  exercises  discretion  in  granting,   518. 

having  authority  to  grant,   459,   460,   503,   508. 

resort  to,  when,  495. 
definition   of,   450,   458,   460,    475,    477,   486.  

in  light  of  modern  practice,  450. 
demurrer  in,   5  3  6. 

differentiated   from  other  extraordinary  remedies,   4  87. 
directed  only  to  judicial  tribunals,  482-490. 
discretion  of  court  in  granting,  455.  462,  465,   467. 
duty  of  supreme  court  to  grant,  when,   455,   464; 
equitable  remedy  a  bar  to,  462. 
excess  or  defect  of  jurisdiction,  490-498. 


902  INDEX. 

{References  are  to  pages.) 

PROHIBITIOX— C'onftjwed. 

excess  of  power  restrained  by,   491. 

executed  judgment  bar  to,  477,  479,  520,  522. 

exercise  of  unauthorized  power  restrained,^  495. 

extraordinary  remedy,  462,  472. 

granting  writ  discretionary,  509. 

histoiy  of,   460. 

injunction  distinguished   from,   45  9. 

issuance  of  commissions  by  governor  not   restrained   b}%    483. 

insufficient   return  to  peremptory  writ,   4  5  6,    45  7. 

interest  required  of  plaintiff,  514,  515. 

jurisdiction,  misconstruction  of  law  effecting,   498-502. 

of  United  States  supreme  court,  507,  508. 
mandamvis  contrasted  from,  4  71,  4  7  2. 
may  issue  to  a  stranger  to  the  action,  515. 
ministerial   acts  not   restrained  by,    483. 
ministerial  officer  not  amenable  to,  512,  513,  519. 
misinterpreting  law  of  jurisdiction,  ground  for,   500. 
modern  practice,  527,  528. 
not  governed  bv  technical  rules,   495. 
not   issued   on   presumption   inferior   court  will   exceed   jurisdiction,   52i 

532. 
not  writ  of  right,  4  62-469, 
object  of.   450.   458,   483,   494,   519, 
officers   amenable   to,   when,    45  8. 
only  necessary  defendant,   519. 
original  jurisdiction  of  supreme  court,   457. 
other    remedies,    effect    on,    469-476. 

must  be  adequate,  471. 
parties  amenable  to.    176,   450.   458,   459.   513. 

to  whom  granted.  4  5  8. 
petition    in,    528-532. 

plaintiff  may  b(?  either  of  contending  parties,   519. 
power  of  supreme  court  to  issue  limited.   511. 
preventive,  not  corrective  remedy,   47  7.  4  82,   519,  522. 
proceeding  Ix'tween  courts,   505. 
projier   7-emedy.    when,    475,    492.    498. 

how  determined.   17  6. 
j)ro\ision  for  jurisilict  ion  in.   507. 
fpio   irarraitto   will    not   su])ersede.    488. 
ri'inedy  will  lie,  when,  524. 

removal   of  causes  from   state   to   federal   courts   not    prevented   by,   507. 
rnb.  f(ir  granting  after  judgment,  502-503. 
iM'fore  judgment,   502-503. 

1o  show  cause,   532-5  3  6. 
sued  out    in   name  of  state.    Mil. 


INDEX.  903 

{References  are  to  pages.) 

PROHIBITION— roM /MI  wed. 

superior  court  determines  jurisdiction  in,  508-512. 

to  whom  granted,   483. 

what  petition  should  show,   532. 

will  issue,  when,  519. 

will  lie  for  unexecuted  judgments,  456. 

writ  of  error  not  superseded  by,  495. 

PROPERTY, 

reciever's  control  of  is  the   court's  control,   519,   520. 

PROSECUTION, 

definition  of,  262,  263. 

PUBLIC  CORPORATION, 

dissolved  by  qno  warranto,  414,  415. 

PUBLIC  OFFICE, 

title  to  tested  by  quo  icarranto,  331,  332,  337. 
usurpation  of,  public  wrong,  331. 

PUBLIC  OFFICER, 

amenable  to  mandamus  for  performance  of  duty,  220. 

amotion  necessarily  precedes  quo  warranto  against,    2  7  6. 

classification  of,  268. 

conduct  sufficient  to  justify  ouster,  when,  272,  273. 

conviction  must  precede  forfeiture  of,  275. 

definition  of,  2  68,  337. 

discretion   not   controlled   by   mandamus,    110-112. 

information  in  qvo  warranto  will   lie  to,   250,   251,   252. 

mandamus  granted  against,  24,  25,  44,   195. 

mandamus  to  compel  performance  of  duty,  59,   113,  114,  118,   119. 

mandamus  will  not  control  discretion,   110-112,   119,   120. 

ministerial  acts  only  controlled  by  courts,  149. 

ministerial   duties  enforced   by    mandamus.    126. 

must  be  clear,   126. 
performance  of  duties  omitted  by  predecessor   incumbent   upon,   223. 
power  to  resign  limited,   169,  170. 

predecessor,  compelled  to  perform    omissions  of,   223. 
railroad  corporation  analogous  to,    190,    191. 

PUBLIC  IMPROVEMENTS, 

mandamus  to  compel  making  of,  187. 
PUBLIC  INTEREST, 

private  rights  subordinate  to,   10. 
PUBLIC  HIGHWAYS, 

legislative   control   of,    200. 

legislatvire  possesses  full  power  over,  200. 


904  INDEX. 

(References  are  to  pages.) 

Q 
QUO  WAERANTO. 

action,  how  brought,  322,  323. 

actual  user  of  office  must  be  shown,  388-390. 

acquiescence  or  recognition  bar  to,  310-315. 

adequate  remedy  bar  to,  276,  325,  374,  375. 

affidavit  for  must  contain  positive  allegations,  293,  294,  296,  29" 

allegations  of  attorney-general  in  g-eneral  terms,  430,  431. 

amendments,  practice  of  allowing,  449. 

amotion  must  first  be  exercised,  27  6. 

ancient  procedure  in,  290,  291. 

applicable,  when,  331. 

appropriate  proceeding  to  determine  right  to  office.   16,   17. 

attorney-general  cannot  dismiss  proceedings,  344. 

must  suggest  to  redress  public  wrongs,  392. 

power  to  file,  256,  264-266,  400.  401.  408,  411,  421. 
against  corporatio7is,   256. 
burden  of  proof  how  determined,  442. 

on  relator,  443. 

on  respondent,  when,  440,  441. 

on  state,  440,  441. 
cases  in  which  attorney-general  may  file,   3  37. 
civil  suit,  298. 

change  of  venue  granted  in,  449. 
circuit  court  jurisdiction  in,  278,  279. 
citizen  may  file  without  consent  of  attorney-general,   344. 
civil  action  in  procedure,  274. 
civil  officers  amenable  to,   345. 
code  provision  for,  435. 
common  law  proceedings,   444. 
constitutional  provision  for  jurisdiction  in,  271. 
constitutionality  of  corporation  act  tested  by,    360.  361. 
corporate  name  used  admits  existence  of,  420-429. 
corporations  amenable  to,  when,  350,  351.  416,  419,  422. 

contra,  416.-419,  422. 
costs,  to  wliom  award,  4  49. 
court  discretion  not  ended  by  issue  of  writ,  403. 

exerci.'^e  discretion  in  granting,  250,   251. 

jurisdiction   in.  extent  of,  272. 

must  grant  if  forfeiture  exists,  273. 

should  not  grant  when  evidence  conflicts,  291,  292. 
criminal   action    dist inguislied   froin,    274. 
criminal  and  not  civil  action,  369. 
defendant   m\ist  disclaim  or  justify,  439. 

s|i((ifically  state  grounds  of  claim,  431,   440,  441. 
definition  of,  249,  290. 


INDEX.  905 

{References  are  to  pages.) 

QUO  WARRANTO — Continued. 

differentiated  from  other  extraordinary  remedies,  487. 
discretion  of  courts  to  grant,  286-289,  374,  382,  401,  402-408,  446. 
to  private  person,   313. 
to  state,  315,  374. 
effect  of  plea  in,  439. 
election  cases,  what  determined  by,  279. 
election  of  corporate  officers  corrected  by,  379. 
equitable  remedy  not  a  bar  to,  326. 

exercise  of  power  outside  of  municipal  boundaries  tested  by,  322,  323. 
extent  of  remedy,  how  determined,  369. 
filed  at  instance  of  attorney-general,  409. 
foreign  corporation  ousted  by,  373. 
forfeiture  must  exist  to  justify,  273. 
general  matters  of  practice,  445-449. 
governor  amenable  to,  334,  335. 
granted  attorney-general  to  dissolve  corporation,  393. 

private  citizen,  when,  401,  402. 

state  to  correct  public  wrongs,  1 1 . 
habeas  corpus  not  supersede,  695. 
history  of,  249-259. 

in  reign  of  Charles  II,  305. 
individuals  amenable  to,  when,  350. 
information  authorized,  when,  318. 

defined,  260. 

distinguished  from  indictment,  263. 
from  writ,  254,  298. 

filed  by  citizen  with  leave  of  court,  286. 

on  motion  of  attorney-general,  297,  298,  300. 

not  granted  for  inferior  officers,  251. 

office  created  by  statute,  252,  253. 

supersedes  ancient  writ,  316.   357,  442. 

synonymous  to  writ,  310. 

to  whom  granted,  250,  251. 

will  lie,  when,   251,  252. 
intruder  must  show  authority  for  claim.  358. 
issues  at  instance  of  state,  265. 
judgment  against  individuals,   3  5  0,   351. 
private  corporation,   350,  351. 
jurisdiction,  264. 

not  destroyed  by  statutory  remedy,   2  7  9. 
jury  trial  of  facts,  449. 
laches  of  relator  will  estop,  2  88. 
leading  cases  in,  250. 
legality  of  acts  not  tested  by,  280,  282. 

territorial  annexation  not  tested  by,  324. 


906  INDEX. 

{References  are  to  pages.) 

QUO  \\' AKRAisTO— Continued. 

legislative  act  not  annulled  by,  318,  325. 
length  of  usurpations  bars  state's  right  to,  289,  290. 
mandamus  distinguished  from,  158,  159. 
mere  servants  not  amenable  to,  390. 
military  officers  amenable  to,  345. 
mode  of  procedure,  hoAV  determined,  264. 
municipal  boundaries  not  determined  by,  324. 
'     municipalities  not  amenable  to,  306,  307,  308. 

legal  existence  determined  by,  308,  309,  310. 
necessary  interest  of  private  relator,  403. 
new  trial  awarded,  when,  449. 
non-existence  of  corporation  a  bar  to,  429,  430. 
not  criminal  proceedings,  397.  * 

not  private  remedy.  265,  392,  398-401. 
not  proper  remedy,  when,   108,  319.  324,  325. 
object  of,  309. 
officers  of  private  nature  not  amenable  to.  387. 

public  nature  amenable  to,  3  5  3. 
operation  of  statute  of  limitation  in,  284,  286. 
ordinance  not  annulled  by,  315. 
original  nature  of,  290. 
original  purpose  of,  2  65. 
ouster  and  induction  by,  344,  345.  340. 
parties  amenable  to.  176,  318. 
party  entitled  to  ollke  not  determined  by,  2  65. 

performance  of  duty  inijiosed  by  law  not  enforced  by.  315,  316,  317. 
pleading  generally,  433-4  37. 
,power  of  attorney-general  to  file.   297,  298,  300,  444,  445. 

of  district  attorney  to  file,  413. 
practice,  relator  a  private  citizen,  449. 

to  bring  respondent  into  court,  449. 

to  notify  respondent.  4  45.  446. 
private  citizen  as  iclator  in,   4  0  2-414. 
private  corporation  respondent,  419-429. 

and  officers  amenable  to,  34  6. 
private  parties  not  entitle  to,  265,  313,  331,  395. 
private  wrong  redressed  l)y,  265,  374,  375,  393. 
jiroccedirig,  civil   in   form,    KHi,  A'.\~ . 

ciitiiiiiMl   ill   f.Hiii.  civil   in   nature,  331,  344,  357,  359,  398,  442. 

ciiiiiiii:i  I    in    ii;itiirc,    26.'{,   266. 

in  name  of  state,  33  1. 
prohibition  not  superseded  by,  488. 
jiroper  remedy,  when,   16,   156,   159,  249. 

Iiow  deterniiiied,   1  7  6. 

to  oust  an    inlniiiing  cor|i<>iiition,   358,    ."'59. 

lo  IcMt   title  l<.  (illice,  283. 


INDEX.  907 

{References  are  to  pages.) 

QUO  WARRANTO— Con^iTCwed. 

presidential  elector  not  amenable  to,  345. 
public  corporation  as  respondent  in,  414-419. 
public  officers  amenable  to,  250,  251,  253,  391. 
recent  cases  against  private  corporations,  352. 
refused  in  private  cases  of  little  import,  380. 
relator  not  induced  into  office  by,.  346. 
remedy  against \isurpation  of  public  office,  397. 

applied,  when,  3  09. 

for  oll'ort  to  restrain  trade,  3  68. 

for  public  wrongs,  331. 

for  usurpation  of  office  under  charter.  381,  382. 

in  election  cases,  27  8.  279. 

nonuser  of  franchise,  3  69. 

to  test  title  to  office,  282. 
replication  and  subsequent  pleadings  in,  440. 
respondent,  burden  of  proof  on,  441. 
right  of  people  to  in  election  cases,  280. 
rules  applicable  to  pleading  in,  433. 
scope  of  remedy,  3  69. 
state  need  not  show  cause,  35  8,  441. 

plaintiflF  in  proceedings,  279,  280,  326,  365-402. 
statute  of  Anne,  226,  303,  304. 

of  Edward,  303. 

of  Glouster,  301,  302. 

of  limitation  bar  to  private  citizen,   286. 
not  bar  to  state,   286,  444. 
statutory  provision  foi,  266,  318,   336,   337.   375,   388,   389,  409,  413, 
420,  421,  435. 

against  corporations,  364. 
title  of  presidential  elector  not  tested  by,  345. 

to  military  office  tested  by,  345. 

to  public  office  tested  by,  326,  331,  332,  337,  345. 
to  real  estate  not  determined  by,  325. 
ultra  vires  acts  not  corrected  by,  371. 
usurpation  of  corporate  office  corrected  by,  375-387. 
American  rule,  375. 
English  rule,  383. 

of  franchise  corrected  by,  34  6. 

of  private  nature  not  prosecuted  by,  266. 
usurper  of  office  as  respondent  in,  429-432. 
what  plea  should  allege,  439. 
writ  superseded  by  information,   256-259,   442. 
writ  synonymous  with  information,  259,  260. 


908  INDEX. 

{References  are  to  pages.) 

R 
RAILROADS, 

corporate  control  necessary,  190. 
common  public  highway  distinguished  from,   191. 
duty  as  carriers    a  public  trust,  191-193. 
mandamus  to  complete  construction  of  road,  62,  63. 

to  construct  crossings,  198. 

to  enforce  public  duties,  192. 

to  establish  stations,   198. 

to  increase  trains,   198. 

to  stop  trains,  198. 
private  corporations  for  public  use,   190. 
public  duty  must  be  executed  regardless  of  cost,  194,  195. 
public  officers  analogous  to,   190,   191. 
^Mflsi-public  corporation   in  character,    199. 
use  public  or  private,  how  determined,   190. 

RECEIVER, 

acts  of  are  acts  of  court,  519,  5  20. 
instrument  of  court,  519,  520. 

RELATOR, 

actual  omission  of  duty,  must  show,  57,  5  8. 
basis  for  determining  who  shall  be,  218,  219,  220. 
clear  legal  right,  must  have,  39,  52,   104. 
conditions  necessary  to  entitle  to  mandamus,   14. 
laches  a  bar  to  prohibition,  464,  465. 

may  forfeit  right  to  mandamus,  89. 
ought  to  have  mandamus,  when,  15. 
power  of  taxpayer  as,  406. 
right  to  claim  must  be  prima  facie,  244. 

REMEDY, 

when  adequate,  80. 

REMOVAL, 

See  Amotion. 
REPAIRS, 

definition  of,   175. 
REPLY, 

rules  governing  pleadings  in  quo  varraiito,  442. 
FtESPONDENT, 

practice  to  Itiing  into  court  in  (jiio  ivurravto,  449. 
RESTRAINT, 

definition  of,  707,  708. 


INDEX.  909 


{References  are  to  pages.) 

RESTRAINT  OF  LIBERTY, 

illegal,  habeas  corpus  remedy  for,  842. 
meaning  of,  842. 

RETURN, 

cause  shown  by,  247. 

certiorari,  accompanied  by  records,  654. 

must  be  properly  certified,  654. 

sufficiency  of,  654. 

what  contained  in,  654. 
habeas  corpus,  contempt  if  false,  871. 

evasive,  penalty,  85  5-864. 

general  form  of,  864. 

to  whom  directed,  870,  871. 

what  constitutes,  849-854. 
must  show,  what,  228. 

peremptory  writ  granted  when  sho^^^l  false,  247. 
provision  for  in  statute  of  Anne,  247. 
remedy  for  fal>!e.  247. 

S 
SCHOOL  DISTRICT, 

power  over  district  committee,  3. 

SCHOOL  DISTRICT  COMAHTTEE, 
subordinate  to  school  district,  3. 

SECRETARY  OF  STATE, 

mandamus  will  lie  against,  123,   124,  127,  138,   139. 
SELECTMEN, 

mandamus  will  issue  to.   178,   179. 

SHERIFF, 

office  not  exempt  from  quo  warranto,  400. 

SPEAKER  OF  HOUSE, 

mandamus  will  not  control,  when,  153,  154. 

"SPEEDY  TRIAL," 

meaning  of,  794-796. 

STATE, 

acquiescence  bar  to  quo  warranto,  314,  315. 

contra,  289,  290. 
attorney- general  proper  legal  representative,   189. 
citizen,  duty  to  serve,  17  0-173. 

construction  of  public  highways,  right  to  control,  191. 
eminent  domain,  power  to  grant,  190. 
habeas  corpus,  inquisition  in  name  of,  753. 
injunction  granted  by,  when,  371. 


910  INDEX. 

{References  are  to  pages.) 

STATE— Continued. 

interference  not  warranted  by  ultra  vires,  371. 
mandamus  grounds  for  granting  to,  194. 

private  remedies  not  preclude,   193. 
neglect  to  perform  francliise  conditions,  fraud  upon,  3  66. 
not  bound  to  make  showing  in  quo  warranto,  441. 
plaintiff  in  certiorari,  when,  633,  634. 

mandamus,  219. 
public  highways,  duty  to  maintain,   191. 

f/i/asi-public  corporation,  public  duty  enforced  by,  200,  201. 
quo  icarranto  granted  to  correct  public  wrongs,  411. 

must  be  filed  by,  395. 

proceeding  in  name  of,  331. 
remedies  against  usurpation  by  municipalities,   306. 
sovereign  power  vested  in,  380,  393. 
sovereignty  of  injured,  when,  193. 
suspension  oi  habeas  corpus  by,  878. 

STATE  COURTS, 

extradition  cases,  power  to  issue  habeas  corpus,  7  39-750. 

federal  courts  not  controlled  by,  7  82. 

habeas  corpus,  power  to  issue,  742-747,  750-755. 

not  municipal  courts,  574. 

STATUTE  OF  ANNE, 

mandamus  proceedings  provided  for.   2  2  6.  22  7. 
quo  icarranto  provisions  for,  313. 

STATUTE  OF  LIMITATION, 

mandamus  affected  by,  64,   65. 

STOCK-HOLDER, 

book,  right  to  inspect  enforced.  210-214. 

STREET  RAILWAY, 

carrying  passengers  a  public  duty,   199,  200. 
quasi-Tpnhhc  corporation,  200. 

SUMMONS, 

answer  to,  waiver  of  objections  to  form,  436. 
irregular  if  not  signed  by  attorney-general,  436. 

ST'PERIOR  COURT, 

discretion  of  inferior  court  not  controlled  by,  515. 

SUPERVISORS, 

certiorari  will  lie  ngain.st,  552. 

SUPREME  COURTS, 

appellate   jurisdiction,  infi'vior  couits  nni.sl    puss  ujxiii  case,   71,   72. 
mandamus  to  inferior  courts.   91,   97. 


INDEX.  911 

(References  are  to  pages.) 

SUPREME  COURTS— Com ^mited. 
appellate  powers  of,  617. 
certiorari  issued  to  inferior  courts  by.  624. 
original  jurisdiction  to  issue,  655. 

to  review  military  proceeding  not  granted  by,  617-618. 
duty  to  grant  prohibition,  when,  455,  464. 

.functions  of  co-ordinate  branches  not  usurped  by,   133,  134,  153,  154. 
habeas  corpus,  power  to  issue,  750. 
inferior  court,  mandamus  to  reinstate  cause,  7  7. 
powers  not  usurped,   73. 
subordinate  to,  606,  607,  609-612. 
jurisdiction  of,  511,  613,  616,  617. 

jurisdiction  will  lie  in  usurpation  by  governor,  334,  335. 
mandamus  against  inferior  courts,  when  granted,   100. 
original  jurisdiction  abolished,  exceptions,   613. 
mandamus   to  officer,   91. 
to    issue    proliibition,    457. 
parties  amenable  to    mandamus  from,  176. 
power  to  issue  mandamus  limited,  511. 

prohibition   limited,   511. 
statutory  provision  to  issue  mandamus,  98,  99. 

superintending  control  of  inferior  courts,  88,  90-92,  455,  457,  460.  501, 
569. 

T 
TELEPHONE  CO:\rPANY, 

mandamus  to  compel  service  furnished,   198. 

TITLE, 

defective  title   same  as  no,   267. 

TITLE  TO  OFFICE, 

quo  icarranto  constitutional  mode  of  determining,   16,   17. 

TRESPASS. 

franchise  not  forfeited  on  account  of,  3  74,  375. 

U 
ULTRA  VIRES, 

necessary  to  constitute  forfeiture,  370. 

not  usurpation,  37  0. 

treated  as  usurpation,  371. 

USURPATION, 

claim  unfounded,  382. 

public  offence  though  involving  private  rights,  437. 

UNINCORPORATED  SOCIETY, 

membership  right  not  protected  by  law,  204. 


912  INDEX. 

(References  are  to  pages.) 

V 
VOTES, 

disqualifications  of  person  does  not  nullify,  404. 

W 
WATER  COMPANY, 

public  duty  to  supply  water,  198. 
WITNESSES. 

not  heard    in   certiorari   proceeding,    547,    552. 
WRIT  OF  ERROR. 

certiorari  distinguished  from,  54  5.   (529.   059. 
in  nature  of,  539. 

error  in  state  supreme  court  corrected  by,   102. 

habeas  corpus  will  not  supersede,  695-098.  719,  703,  782. 

mandamus  distinguished  from,  GO. 
not  supersede,  71. 

plaintifi"  interest  necessary  to  maintain,  029,  638. 

prohibition  will  not  supersede,  495. 

proper  remedy,  when,  60,  70,  102.  103,  107,  158,  495.  575. 

function  not  usurped  by  mandamus,   13,  53. 

remedy  to  review  common  law  judgments,  5  70. 

writ  of  right,  629. 


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